Macdonald v. Bond

Mb. Justice Seabs delivered the opinion of the court. Counsel for appellants urge that the judgment should be reversed upon the following grounds: First, that the agreement to arbitrate and the award of the arbitrator are not binding upon appellants personally; second, that the award is not a valid award; and third, that the recovery could not in any event be had under the common counts. Upon the ground first noted, it is argued that appellants executed this submission as agents óf the Eeliance Marine Insurance Co., a corporation, and not in their own behalf. This contention can not be sustained, for several reasons. The appellants, whatever may have been their intention, did not obligate any principal by the agreement, and they did bind themselves. The submission does not purport to be executed by the Eeliance Company through appellants as its agents. That company is not named or referred to in the agreement. The description of appellants as “ general agents” does not operate to limit their individual liability. It is merely deseriptio personae, and it does not even describe them as the general agents of any particular company. The @vi-deuce discloses that they were general agents of more than one insurance company. Sheridan v. Pease, 93 Ill. App. 219, and cases therein cited. The fact that appellants were known to appellee to be doing business as agents, does not operate to free them from individual liability upon a contract which they have chosen to execute in their own behalf and not in the name of their principal. Scaling v. Knollin, 94 Ill. App. 443, and cases therein cited. And the general rule as to liability of agents applies as well to a contract of this sort as to any other. Winsor v. Griggs, 5 Cush. 210. The foregoing consideration disposes of this contention, but in addition thereto it may be said that the power of attorney, from which the supposed authority of appellants to make this submission for the Reliance Insurance Company is derived, does not purport to empower appellants at all, but one Crosby and C. A. Macdonald. The firm of Macdonald & Co., now composed of C. A. Macdonald and Captain Rardon, who entered into the agreement of submission, acquired no authority through this power of attorney to obligate the Reliance Insurance Company. There is a conflict in the evidence as to whether the matters submitted to arbitration covered insurance business in the Reliance Marine Insurance Co. only, or also other matters. But whether it was so limited or not, this agreement binds the appellants individually to - abide by the award, and it does not bind the Reliance Marine Insurance Company. Upon the ground secondly urged, it is contended that the award is invalid because it does not appear that appellants had any notice to appear at the hearings before the arbitrator, i. e., at the examinations of books, papers and accounts made by him. It is doubtless the law that the parties to a submission to arbitration are entitled to notice of any hearing of the matter by the arbitrator. Morse on Arbitration and Award, page 117. But we can not hold this award invalid upon this ground. It is enough to say in this behalf, without discussing the manner of the attack upon the validity of the award, that the evidence does not disclose that the arbitrator failed to give appellants proper notice of all hearings and proceedings under the submission. In the absence of showing to the contrary, it will be presumed that the proceedings were regular, and that appellants had due notice. All intendments go to the support of the award. Seaton v. Kendall, 171 Ill. 410. If appellants had proper notice, it is of no consequence that they may not have attended the hearing. The third contention is that the recovery could not be had under the common counts. It is true that anciently, debt, and not assumpsit, would lie at the common law to recover upon an award. But in the later common law practice there was departure from this rule, and the action of assumpsit came to be recognized as proper in a suit upon an award. Freeman v. Bernard, 1 Ld. Raymond, 247; Purslow v. Bailey, 2 Ld. Raymond, 1039. It is now established that when the award is merely of a sum of money to be paid, assumpsit will lie, and the count on an account stated is sufficient. 2 Tidd’s Practice, 834; 1 Chitty’s Pleadings, 359; Morse on Arbitration, 579; Keene v. Batshore, 1 Espinasse, 194; Bates v. Curtis, 21 Pick. 247. Under our practice the fact that the submission was by deed and not by parol, would not control.- But it is contended that inasmuch as this award not only provided for a money payment.but as well for the exchange of releases, the latter is to be regarded as a sort of condition precedent to be performed by appellee upon his part before recovery of the monejr awarded could be had, and therefore that a special count is necessary to set up such performance, i. e., the tender of the release by appellee. We think this contention can not be sustained. The mutual exchange of releases is a separate provision of the award, not so connected with the money payment as to make it a condition of the payment. The award of the money payment stands by itself, without any concurrent act to be done by the appellee. Therefore the recovery of the money awarded could be had without any averment by appellee of a readiness to perform or a performance of any other act. Nichols v. Renssalaer Co., 22 Wend. 125; Dudley v. Thomas, 23 Calif. 365. The money payment having been adjudged, and there being nothing further to be done on the part of appellee to entitled him thereto, the recovery was properly allowed under the common counts. I. M. F. Ins. Co. v. Archdeacon, 82 Ill. 236, and cases therein cited. The foregoing consideration disposes of all questions raised by counsel upon the rulings of the trial court on propositions of law presented. Finding no error in the procedure, and the finding of the trial court being fully warranted by the evidence, the judgment is affirmed.