Mississippi Cotton Oil Co. v. Buster

Calhoon, L, delivered the opinion of the court. The oil company and Mrs. Buster had a controversy about their dealings, and agreed, in writing, to submit it to arbitra [96] tion, on the basis that “each party may select one arbitrator, and, in case said arbitrators cannot agree upon a decision, these said arbitrators may select a third person to act as umpire, and a decision, either by said arbitrators or. by one of said arbitrators and said umpire, when so selected, shall be final and binding upon both parties.” This instrument contained, also, a provision that the circuit court of the county should render judgment if the award should not be paid in thirty days. Accordingly the oil company selected E. S. Crane, and Mrs. Buster selected J. C. Hollingsworth, as arbitrators. These two, in order to save two hearings, agreed upon J. H. Lacey to be umpire if they should disagree, and all three were sworn in together, and all three sat together and heard the evidence pro and con; and all three signed the award as arbitrators, in the presence of each other, at the conclusion of the hearing. At this hearing both parties were present by attorneys, and, since they appeared, there is nothing in the idea that there was no notice served on them of the time and the place of the hearing. (Code 1892, § 98.) In fact, there was a full hearing in the presence of the parties, and the award was then and there written out and signed by the arbitrators in the presence of each other. It is in these words: “Yazoo City, Miss., duly 1, 1903. We, the arbitrators in the case of B. W. Buster- & Mississippi Cotton Oil Co., submitted to us for settlement, find that the Mississippi Cotton Oil Co. shall pay to B. W. Buster fifteen hundred and two and 50-100ths dollars, and shall credit the account on their books to J. W. Buster three hundred and twenty-three and 10-100ths dollars in full for the account in question. Total allowance $1,825.60. [Signed] J. C. Hollingsworth, E. S. Crane, J. H. Lacey.” It will be noted that this award does not, on its face, show, that the parties appeared. But certain it is that the cotton oil company was represented throughout the hearing by Mr. Landau, of the firm of Smith, Hirsh & Landau; and he, with full knowledge of the actual award, directed the arbitrators [97] to band it to D. E. Barnett, Esq., the nest day, to be put by him in form. This was done, the award put in proper form, again signed by tbe arbitrators, though on separate days, as each could be found, and Messrs. Smith, Hirsh & Landau duly informed. This firm made no objection, and do not appear in the attack made on the award, though furnished with a duplicate. This was enough. Mr. Landau, while he could not have agreed to a change in the number of arbitrators, as held in Jenkins v. Gillespie, 10 Smed. & M., 31 (48 Am. Dec., 732), had full power as attorney of the oil company, to direct that the award be put in proper form, with the substance of it unchanged. It is immaterial that it was not signed at the same time and place. Steere v. Brownell, 113 Ill., 415 (3 Cyc., 668). We decline to sustain the contention that the award was void because the umpire was sworn with the arbitrators and sat with them during the taking of the testimony. The time to make that point was at that hearing, and the umpire took no part until called in by the arbitrators, when they failed to agree; and, if he had done so, there was no objection. Estice v. Cockerell, 26 Miss., 130. We do not find in this record any evidence establishing any fraud, partiality, or unfairness. It was proper to refuse a question to an arbitrator in impeachment of his award. Affirmed.