Whitman v. Bartlett

ANDERSON, J. While the statute encourages arbitrations (section 508 of the Civil Code of 1896), and section 512 authorizes an award by a majority, this last section applies to statutory, and not common-law, arbitration and, award, which said later arbitrations are recognized and regarded by section 523 of the Civil Code of 1896. The arbitration set up in the defendant’s special plea 2 was not a statutory arbitration and award, as section 510 requires that the submission must have been in writing. Tt was at most a common-law submis [550] sion for arbitration, and did not present such an award as would be binding under the common law, as it was not the award of all the arbitrators, but of a mere majority. It seems to be the general rule in all jurisdictions, with perhaps the exception of Louisiana and South Carolina, that under a submission to a number of arbitrators, without the expression of an intention that a majority or less than the whole number may exercise the power conferred, it is necessary to the validity of the award that all the arbitrators should concur. 3 Cyc. 651, and cases cited in note 96; McCrary v. Harrison, 36 Ala. 577. The plea does not set up any facts showing that it was within the contemplation of the parties that there should be a majority, instead of a unanimous, award, and the trial court did not err in sustaining,the demurrer to same. The plain tiff,' after the close of the evidence, asked for a recovery under the first count alone, thus grounding his right of recovery to the 500-bale deal of February 24, 1903. In order for the plaintiff to recover a share of the profits made under said deal, there must have been a contract between the parties, express or implied. That he was interested in a fund, which was used by the defendants to margin the transaction, and which was so used without his authority, did not suffice. Nor does the plaintiff’s evidence show such a contract with the defendants as will enable him to claim any part of the. fruits. He admitted, on cross-examination, that there was no agreement as to the interest he should have in the contract, and the previous deals cannot be looked to to determine this fact, as he had a different interest in each of them.. In order to recover, it was incumbent upon the plaintiff, not only to show that he was interested in the deal, but he must show what interest he had. 27 Cyc. 854. [551] The trial court erred in refusing thé general charge requested by the defendants, and the judgment is reversed, and the cause is remanded. Reversed and remanded. Tyson, O. J., and Dowdell and McClellan, JJ., concur.