McCord v. Flynn

Cassoday, 0. J. The defendant contends that his motion to vacate and set aside the award was improperly denied. The principal ground upon which such contention is based is that the plaintiff’s claim for the specific performance of the contract for the purchase of the Taylor farm was not within the power of the arbitrators, even though formally submitted to them, and hence that the award thereon is void. One of the grounds for vacating an award prescribed by statute is “ that the arbitrators exceeded their powers.” Subd. 4, sec. 3552, Stats. 1898. The parties were expressly authorized by statute to submit to the arbitrators any controversy existing between them which was or might be the subject of a civil action, except as otherwise provided by statute. Sec. 3544. True the statute declares:, “No such submission shall be made respecting the claim of any person to any estate in fee or for life to real estate; but any claim to an interest for a term of years or for one year or less in real estate, and controversies respecting the partition of lands between joint tenants or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower may be so submitted to arbitration.” Sec. 3545. Under that statute it has been held by this court that arbitrators have no power to determine that a conveyance of land by deed which upon its face conveys an absolute fee shall only have effect as a mortgage. Russell v. Clark, — 87 — 60 Wis. 284. To the same effect, Lang v. Salliotte, 79 Mich. 505. There is no question but that the defendant purchased and took a deed in his own name of the Taylor farm. The agreement was that the plaintiff should work for the defendant in cultivating and tilling the land, and finally receive a deed from the defendant for one third of that farm as part compensation for his services. The statutes cited were borrowed from New York, and in that state it has been held thp.t they “ forbid the submission of claims to an estate in lands, only where the controversy is as to the legal title, and not where the equitable title only is in dispute.” Olcott v. Wood, 14 N. Y. 32. This court has held that an award of damages for the overflowage of land had been properly submitted to the arbitrators. Wood v. Treleven, 74 Wis. 577, 581. Under the contract in question, the plaintiff never had anything more than an equitable interest in the land. The action was brought for an accounting and to enforce such equitable claim to the land. In the agreement submitting the controversy to the arbitrators, the plaintiff “ for the purposes of this arbitration, and finally if judgment be entered upon the award made by such arbitrators,” waived “ all claim that such contract might give him to the Taylor farm therein mentioned,” and agreed “ to accept only a money award in his favor for such sum as, under such contract and the testimony given before them, such arbitrators shall determine he should justly receive.” We must hold that such submission was not void by reason of the plaintiff’s interest in the land. The contention that the arbitrators had no power to order or determine that the plaintiff should have judgment, for the reason that that question had not been submitted to the arbitrators, is without merit, since such submission not only contained the language just quoted, but the parties therein expressly agreed “ that a judgment of the circuit court of Grant county shall be rendered upon the award made pur — 88 — suant to this submission.” The legal title to the farm and the personal property on the farm was in the defendant, and the submission very properly required the plaintiff “ to accept only a money award in his favor.” The judgment is pursuant to the award, and against the defendant personally. There being no fraud or mistake, the parties are conclusively presumed to have known the contents of the agreement for the submission to arbitrators. Montgomery v. Am. Cent. Ins. Co. 108 Wis. 146, 156. In a recent opinion of this court, written by my brother Dodge, it is said, in effect, that where the arbitrators have exercised, or attempted to exercise, their judgment upon the questions submitted to them, their award must, in the absence of fraud, misconduct, or mistake, stand as fixing the rights of the parties just as fully and finally as if the amounts fixed by them had originally been agreed upon by the parties and written into the contract; and that the award is none the less binding because the arbitrators have erred in judgment upon any question of fact or law submitted to them for judgment, such errors being among the contingencies which parties assume when they select such tribunals. Consolidated Water Power Co. v. Nash, 109 Wis. 490, 503, and cases there cited. When questions of law and fact involved in a controversy are submitted to arbitrators by the parties, their award cannot be assailed on the ground of errors honestly committed by them, whether of law or fact, except in the cases prescribed by statute. Secs. 3552, 3553, Stats. 1898; Fudickar v. Guardian M. L. Ins. Co. 62 N. Y. 392; Hoffman v. De Graaf, 109 N. Y. 638; Sweet v. Morrison, 116 N. Y. 19, 33; Matter of Wilkins, 48 App. Div. 433. Thus, it is held that the award of arbitrators cannot be interfered with for mere error of judgment as to the law or the facts submitted to them. Id. In other words, so long as arbitrators keep within their jurisdiction, the court has no general supervisory power over their awards. Id. “ Unless restricted by — 89 — the submission, arbitrators may disregard strict rules of law and evidence, and decide according to their sense of equity.” Fudickar v. Guardian M. L. Ins. Co., supra. “The presumption is that arbitrators. considered every matter submitted, to them, and made their award with respect thereto.” Wood v. Treleven, 74 Wis. 577. As indicated in the statement, the parties agreed to, and did, “ submit their respective claims under said contract ” to the arbitrators. That called for a complete accounting between them, and the determination of their respective rights under the contract, except as stipulated in the agreement of submission. ' We find no ground for disturbing the judgment on the defendant’s appeal. The plaintiff appeals because the court refused to confirm the award as made, but modified the same by deducting from the $1,009.67 award to the plaintiff $131.67, being one third of the value of Kate Flynn’s services. She was a sister of the defendant, and lived with hini, and constituted a part of his family at the time of the making of the land contract.’ Under that contract, all proceeds of the two farms “ over and above the necessary running expenses, and over and above the maintenance .of the ” defendant ■“ a/nd his family ” and the plaintiff, was “ to be applied upon and for payment of ” the Taylor farm. Since Kate Flynn constituted a part of the defendant’s family, and since the respective claims of the parties under that contract were submitted to the arbitrators, it is obvious, under the principles of law statéd, that the award of the arbitrators as to that claim was binding upon the parties and was not subject to revision by the court. But the deduction of one third of the amount which the defendant had received for fees as town clerk, amounting to $100, from the amount so awarded to the plaintiff, stands on a different principle. Such fees were not covered by, nor referred to in, the land contract. The facts in respect to such fees are alleged in the defendant’s answer, .but were no — 90 — where submitted to the arbitrators. This being so, the court properly modified the award by deducting therefrom the $100 so allowed. The statute expressly authorized the court “to modify or correct such award,” since the arbitrators had awarded the same upon a “ matter not submitted to them,” nor “ affecting the merits of the decision upon the matters submitted ” to them. Sec. 3553, Stats. 1898; Doke v. James, 4 N. Y. 568. The plaintiff insists that the trial court committed an error in treating the award as embodying the correction made by the arbitrators six days after the date of the original award, whereby there was charged to the plaintiff $82.50, being one third of $247.50, the value of nine head of cattle which the defendant owned in 1894', and which, “ by an oversight” on their part, had not been “ counted to his credit.” It is true, as a general rule, that after arbitrators have made and delivered their award they become functus officio and have no power thereafter to rejudge the case and alter the award. Doke v. James, supra; Flannery v. Sahagian, 134 N. Y. 85; Herbst v. Hagenaers, 137 N. Y. 290. Counsel concede that, if the defendant had moved to modify the award upon the ground that there had been a miscalculation of figures or an evident mistake, the court would have had power to modify the same accordingly. The statute authorized the court “ to modify or correct such award . ... when there is evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award.” Sec. 3553, Stats. 1898. The motions made by the respective parties gave the court power to correct such miscalculation or mistake in a matter so submitted to the arbitrators, and the order of the court, treating the award as so corrected, must be regarded in part as an order so modifying the award. The correction is dated on the same day the original award was filed. The land contract and the submission to the arbitrators required them to take — 91 — into consideration the nine head of cattle owned by the defendant in April, 1894. By a mere oversight, they at first omitted to give credit for the value of such cattle. In making the correction there was no rejudgment nor opening of the case, but merely adding figures which by mistake had been omitted. Under the rulings of this court, the correction of such mistake was permissible. Ferson v. Drew, 19 Wis. 225; Bancroft v. Grover, 23 Wis. 463 By the Court.— The judgment of the circuit court is affirmed, in so far as it is called in question by the defendant’s appeal; and upon the plaintiff’s appeal the judgment is modified by reducing the amount of the award and increasing the amount of the judgment which the plaintiff is to recover to §>909.67, but in all other respects the judgment is affirmed. No costs are allowed in this court on the plaintiff’s appeal, except that the defendant must pay the fees of the clerk of this court.