Stearns v. Cope

Mr. Justice Mulkey delivered the opinion of the Court: Several questions of law arise on this record, none of which present any serious difficulty. We will consider first the ruling of the court in sustaining the demurrer to the third plea. . This plea is framed, as we suppose, upon the theory tlie award is void as to the costs of arbitration, either because of the uncertainty of the amount required to be paid, or on the ground they were not embraced within the submission, and that the arbitrators therefore had no power or authority to make any award concerning them, and that being void in part it is void as a whole. In the view we take of the question it is not necessary to stop to consider whether arbitrators, as a mere incident to their power to adjust and determine the matters embraced in the submission, may not make such an order in respect to costs, for it may be conceded for the purposes of the present inquiry that the award, so far as the costs are concerned, is invalid on both the grounds suggested, and yet it does not necessarily follow the plea presented any defence to the action. The costs are not sought to be recovered in this suit, and the fact the award concerning them is invalid,—conceding it to be so,— does not, in our judgment, afford any reason why the residue of the award, to which that objection does not apply, should not be performed. The fact that the award is invalid to that extent but relieves Emery and his surety from the payment of a sum of money they would otherwise have to pay, hence, so far as this suit is concerned, neither of them has any right to complain. If by this suit Emery were seeking to recover from Cope for a refusal to perform some requirement of the award on his part, and the latter, instead of Emery or his surety, was now urging this objection, and putting his refusal to perform on the ground it would be unj ust to make him fully perform the award on his part, when, by reason of its illegality in the respect mentioned, it could not be fully enforced on the other side, and the law is as is assumed by the plea, a different question would be presented. In the case supposed, the defence would have at least the merit of plausibility, but under the facts as here shown, the plea clearly presented no defence to the action, and the demurrer to it was properly sustained. It is a rule of law, as well as of common sense, that a party will not be heard to complain of an error that works him no injury. A fortiori, he can not take advantage of such an error when, as is the case here, it is manifestly in his own interest. This principle applies with the same force to arbitrations that it does to proceedings in courts of justice. (6 Wait’s Actions and Defences, 526.) The law is well settled that where an award is good in part and bad in part, and the two parts are severable, and not in any manner dependent on each other, the award may be sustained in'so far as it is valid, and rejected as to the residue. Ibid. 548. It is urged, however, that conceding the third plea was bad, the demurrer should have been carried back and sustained to the declaration. If, as contended, the declaration is bad in substance, the appellant should have stood by the demurrer which the court overruled, to the declaration itself. While it is a general rule of pleading that the court will, on demurrer, regard the whole record as open, and carry the demurrer back and sustain it to the first faulty pleading in the line of the pleading demurred to, yet this rule has a number of well defined exceptions, one of which is, the court will not, in carrying the demurrer back, sustain it to a pleading of the adverse party to which a demurrer thereto has already been overruled. (Culver v. Third National Bank, 64 Ill. 528.) The party demurring, by pleading over, waives the demurrer, and admits the sufficiency of the pleading to which the demurrer was interposed. Walker v. Welch, 14 Ill. 277; American Express Co. v. Pinckney, 29 id. 392. If, however, a declaration is so totally defective as not to support the judgment, that may be availed of by a motion in arrest, even after a demurrer thereto has been overruled, and the defendant has pleaded over. By the motion in arrest, in this case, the sufficiency of the declaration to sustain the judgment is therefore directly presented. The objection urged to the declaration is, that it should have set out the submission, and then averred “that the arbitrators considered and decided all matters submitted to them. ” This was not necessary. The action is on the bond, and not on the award, and therefore it was sufficient for the plaintiff to aver generally that the differences agreed to be arbitrated, as recited in the conditions of the bond, were in fact submitted to the arbitrators; that the arbitrators, in pursuance of such submission, made out and published their award, setting it out, and that Emery, upon request, refused to abide by and perform it. This the declaration does, and we think it is sufficient to put the defendant on his defence. In short, we are of opinion the declaration is not only good on a motion in arrest of judgment, but upon general demurrer also. If the arbitrators did not consider all the matters of difference between the parties, as is claimed, and such failure was not occasioned by the neglect of the complaining party to furnish the necessary proof relating thereto, that was matter of defence, and should have been, as it really was, presented by proper pleas. Whether the arbitrators did their duty in this respect was a matter of fact for the consideration of the judge who tried the cause, and the Appellate Court, which has been conclusively settled against the appellant, and it is hardly necessary for us to say we are not permitted to reconsider it here. It is also objected the trial court erred in admitting in evidence the bond, submission and award. We perceive no force in any of the reasons assigned for the exclusion of these instruments of evidence, or either of them. So far as the bond and the submission are concerned, their execution was admitted by the pleadings, hence there was no occasion for introducing them in evidence at all; but as to the award, the contention is, that it is absolutely void, because it does not show affirmatively the particular matters passed upon by the arbitrators, and that they were all the matters embraced in the submission, and being void, for this and other reasons heretofore stated, the so-called award should have been excluded. We fully recognize the rule that where several distinct matters, not consisting of mere money demands, are submitted to arbitration, the arbitrators must consider, and by their award finally settle and dispose of, all such matters in difference; and this must appear from the award itself. (Tucker v. Paige, 69 Ill. 179; Buntain v. Curtis, 27 id. 374.) For instance, if the controversy and submission relate to the ownership of several distinct pieces of property, and the arbitrators, notwithstanding evidence is offered by the parties as to all of them, should nevertheless only pass upon and determine the question of title as to one or more of the pieces, without making any disposition of the controversy as to the others, the award in such case would be clearly void. Many other illustrations of the principle might be given, but this one will suffice. Where, however, the controversy relates, as.in the present case, to cross money demands, whether in suit or not, .or where, in any case, the circumstances are such that the arbitrators will be warranted in requiring the party who, upon the whole, appears to be in default, to pay to the other a gross sum of money, it is not necessary, nor is it the better practice, for the award to show upon its face just how the result was reached,—or, in other words, how each item of their respective demands was disposed of. It is sufficient if the award is responsive to, and is fairly embraced within, the submission. The awarding of a gross sum of money in such case will be presumed to be a complete adjustment of all matters of difference embraced in the submission, and this view is well sustained by authority. Weed v. Ellis, 3 Caines, 253; Baspole’s case, 8 Co. 97b; Wahmough v. Holgate, 2 Vent. 221; Patton v. Baird, 7 Ired. (N. C.) Eq. 255; Blossom v. Van Amringe, 63 N. C. 65. The claim that the arbitrators considered and passed upon the matters involved in Cope’s suit against Emery, and not upon those involved in the latter’s suit against Cope, is wholly unwarranted by anything appearing on the face of the award, or other papers in the cause. The award makes no special reference to either of the cases, and so far as anything appears on the face of it, there is just as much to show one was considered as the other. The presumption is that the matters in controversy in both suits were considered and fully determined by the arbitrators, as expressed in their award, and, as before shown, this fact having been put directly in issue by the pleadings, it must be regarded as conclusively settled against the appellant. The judgment will be affirmed. Judgment affirmed.