Campbell v. Campbell

44 App. D.C. 142, 1915 U.S. App. LEXIS 2692

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 29, 1915
• Docket: No. 2804
• Status: Published

Opinions

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Two important questions are presented by this appeal: First, Hid the arbitration agreement and award discontinue and terminate the present suit? and, second, is the Ohio judgment a bar to further proceedings in this District touching the validity of the award ?

Whether an arbitration agreement and award operates as a discontinuance of pending litigation for which the arbitration is substituted by agreement of the litigants is dependent largely upon the intention of the parties. Where it is agreed that the award shall be filed in the pending suit, the arbitration proceedings merely operate to stay proceedings, and not to discontinue the suit. Bailey v. District of Columbia, 4 App. D. C. 356. Many courts, both in this country and in England, have held that the mere submission of the matters in litigation to arbitration, though no award is made, operates ipso facto to discontinue the suit. Camp v. Root, 18 Johns. 22; Draghicevich v. Vulicevich, 76 Cal. 378, 18 Pac. 406; Larkin v. Robbins, 2 Wend. 505; Wells v. Lain, 15 Wend. 99; McNulty v. Solley, 95 N. Y. 242; Travelers’ Ins. Co. v. Pierce Engine Co. 141 Wis. 103, 123 N. W. 643; Mooers v. Allen, 35 Me. 276, 58 Am. Dec. 700; Eddings v. Gillespie, 12 Heisk. 548; Jewell v. Blankenship, 10 Yerg. 439. But this rule is by no means universal. An opposite view has been held by many courts. Nettleton v. Gridley, 21 Conn. 531, 56 Am. Dec. 378; Henry v. Porter, 29 Ala. 619; Lary v. Goodnow, 48 N. H. 170; Dinsmore v. Hanson, 48 N. H. 413; Paulison v. Halsey, 38 N. J. L. 488; Fielding v. Westermeier, 20 La. Ann. 51; Callanan v. Port Huron & N. W. R. Co. 61 Mich. 15, 27 N. W. 718. Where, however, as in the present case, the submission is followed by an award, and it is agreed that upon the return of the award and compliance therewith by the debtor party the pending suit shall be terminated and dismissed, it is settled law that it operates as a discontinuance of the pending litigation.

The bonds of submission stipulated, among other things, as follows:

“7. The scope of the inquiry leading to a final finding and award shall embrace any claim of ány nature either party desires to assert against the other, whether equitable or legal; and may embrace claims based on unnecessary loss and injury to either party, by unjustifiable acts of the other.

“8. Tbe purpose of this agreement, being to take up all claims of each party from the beginning, and make an award on the merits of the case, in doing this the arbitrators shall in nowise be limited or constrained by any interpretation put on the paper of Sept. o-6, 1902, by either party; but each party can, without limitations, present his claims in regard to said paper, and use in doing so, any evidence in his possession.

“9. Said arbitrators shall make a final finding and award in writing, which shall be absolutely binding on both parties, on all the claims presented, and neither party shall resort to any legal or other proceedings, to defeat or change the final finding and avrard, or delay or obstruct a final settlement, under said final finding and award, according to the terms agreed upon by said arbitrators, or a majority of them, and each party agrees to perform and abide by said award.

“10. The arbitrators shall determine and direct how the settlement of the debtor party shall be made, when it shall be made, and the manner and time of payment.”

“14. As soon as the award of the arbitrators has been made, and the debtor party has complied herewith, said suit now pending shall thereby be terminated and dismissed. Provided that if said award requires the execution by said debtor party of any notes or other papers, said execution and delivery shall be deemed a compliance therewith.”

By the terms of the award it was found that defendant owed plaintiff $47,725.33; and that it should be liquidated by conveyance in fee to plaintiff of certain real estate owned jointly by the firm, the legal title to which had been vested in trust in the arbitrators, “as full and complete satisfaction of all indebtedness due him by Charles M. Campbell as of the date of this award, and Charles M. Campbell is hereby released from any and all further liability on any claim set out in ‘exhibits C and D.’ ” These exhibits embraced the claims of each party against the other. The award also provided for the conveyance to plaintiff by the trustees of certain real estate described in the award, and for the disposition of certain promissory notes and corporation stock belonging to the firm. The award likewise provided for the conveyance of the property held by the arbitrators in trust to the plaintiff within sixty days after the publication of the award, and further provided that 'The said James W. Campbell shall within fifteen (15) days after the publication of this finding and award dismiss the suit in equity now pending in the supreme court of the District of Columbia, said suit being equity No. 25,671, in which he is the complainant and Charles M. Campbell is the defendant.”

The record discloses that defendant, in so far as it is within his power, has complied with the terms of the award. The legal title to the real estate, which, by the terms of the award, was to be conveyed to plaintiff, was held by the arbitrators as trustees under the terms of submission. Hence, nothing in fact remained for defendant to do in order to comply with the award in so far as the real estate was concerned. Title had already passed from him to the arbitrators; and, if the arbitrators failed to make conveyance to plaintiff, his right of action is against them, and not against defendant. It may be suggested, however, that, inasmuch as the award required plaintiff to dismiss this suit before the real estate was to be conveyed by the arbitrators, plaintiff is in poor position to complain of the failure of anyone to comply with the conditions of the award. The award also required defendant to assign to plaintiff within sixty days after the award certain notes, amounting to $6,831, and also 200 shares of corporation stock. As to the assignment of the notes and corporation stock, defendant in his plea of the submission and award in bar to the amended and supplemental bill averred that “the said award required this defendant to transfer to plaintiff this defendant’s interest in certain securities and stocks set forth in said award, all which the defendant did promptly and within the time required by said award.” This averment is nowhere affirmatively or negatively controverted; hence, it must be accepted as true.

Indeed, if defendant had failed to comply with the terms of the award, it is doubtful if the case would be different, since plaintiff averred in one of his amendments to the original bill: '“Immediately after learning of the award complainant repudiated it, and lias ever since continued to do so. He duly and promptly notified the arbitrators and defendant, Charles M. Campbell, that he would not abide by it, and he has received no benefit therefrom in any manner whatsoever, and has continuously refused to accept any of the property or money awarded to him.” In the light of this statement, it would ill become plaintiff in a court of equity to complain of the failure of defendant to comply with the terms of the award.

But it is contended by counsel for plaintiff that defendant waived his right to demand a dismissal of the suit by pleading to the amended and supplemental bill. We are not impressed with this contention. Defendant did not waive his right to demand a dismissal of the suit. The award itself operated as a discontinuance of the suit, and defendant, at the first opportunity, when confronted by the amended and supplemental bill, interposed the following plea in bar: “Wherefore this defendant says that by said submission to arbitration and the award thereon, said plaintiff is forever barred of all right to prosecute this suit, or to recover in anywise against this defendant, and said plaintiff is bound forthwith to dismiss this suit.”

The parties voluntarily withdrew their controversy from the consideration of the court, and submitted it to a tribunal of their own creation, stipulating that this award should be final. What, then, was the effect of the submission and award upon the pending suit? It was to remove the cause from the court to the tribunal created by the parties. In the leading case of Purdy v. Delevan, 1 Caines, 304, which was an action for conspiracy in burning plaintiff’s barn, after suit was instituted, the parties agreed to submit the case to the arbitrament of certain arbitrators. After hearing, the arbitrators rendered an award finding against the plaintiff, and ordering “that the said suit should be no further prosecuted, and that the plaintiff should pay to one of the defendants $14 and 68 cents, for his costs and expenses in defending the suit, and attending the arbitration.” The question involved the right of plaintiff to further prosecute the pending suit. In the opinion, Justice Kent said: “On this statement of the substance of the submission and award, it appears to me that the reasonable and common intendment from the language of the award is a determination of the merits of the canse. The present canse of action was fully and explicitly submitted. The award refers to the bonds of submission, and, of course, the arbitrators had their eyes fixed on the merits of the complaint, and the mtent of the submission. The award states that the proofs and allegations of the parties had been examined and considered; of course, the merits must have been fully heard. It then adjudged that the said suit shall he no further prosecuted, and that the plaintiff shall pay the costs. This award could not have intended merely a cessation of the suit referred to in the bond and award, with liberty to institute a fresh suit on the same matter. This would have rendered the award altogether useless and absurd. The bonds had stated already that the parties had agreed to discontinue the suit. * * * So, an award that a suit in chancery between the parties should he dismissed was good and final; for it must be understood that it shall be dismissed and cease forever; that is, a substantial dismissal and cesser, and not the shadow of one. Knight v. Burton, 6 Mod. 232, s. c. 1 Salk. 75. So, an award that all suits between the parties shall cease is good, for the meaning is not that the party should give over and begin again, but that the suit should cease absolutely and forever, so that the right itself is gone with the remedy. The same construction was given to these words in an award, that all suits which are prosecuted by the plaintiff against the defendant shall cease. Squire v. Grevell, 6 Mod. 34, 1 Salk. 74, 2 Ld. Raym. 691; Strangford v. Green, 2 Mod. 228. See also Gray v. Gray, Cro. Jac. 525.” It will be observed that the English courts from the most ancient times have held that an award providing for the dismissal of a chancery suit was a bar to further proceedings in that suit.

In the light of the aforegoing- authorities, we entertain no doubt that the submission and award, and the compliance therewith by defendant, operated to discontinue the present suit. It was error, therefore, to permit plaintiff to file the amended and supplemental bill. The original suit was dead, and it was beyond the power of the court to resurrect it. Shawhan v. Baker, 167 Mo. App. 25, 150 S. W. 1096.

Plaintiff, though dissatisfied with the award, could not shift back to the pending suit. By the bonds of submission, the parties created a tribunal of their own which supplanted the court in which the proceeding was pending, and it would be a travesty upon justice to permit a party to thus disregard his solemn agreement. It is the policy of the law, as expressed by both English and American courts, to uphold the peaceful, swift, and inexpensive method of terminating litigation by arbitration. “And such amicable actions, so far from being objects of censure, are always approved and encouraged, because they facilitate greatly the administration of justice between the parties.” Lord v. Veazie, 8 How. 251, 12 L. ed. 1067. Or as was said in the case of Bird v. Laycock, 7 La. Ann. 171: “Such being the authority of amicable compounders, they are to be considered as in a peculiar degree, mediators of peace. When, therefore, parties embroiled in litigation become alarmed at the prospect of its expense, its delays, its many perplexing, -wearisome, and irritating incidents, and seek among their friends judges of their own choice, and clothe them with the authority of amicable compounders, they are considered, to use the simple and expressive language of Domat, as saying to such arbitrators, that each party is willing to abate something of what they hope for in justice, and, for the love of peace, to forego a part of their interests; that they prefer the considerations of peace and quiet, to the rigor of justice, which might leave still occasions of strife and contention.”

That the award is valid on its face, we entertain no doubt. The submission embraced in the most sweeping language all matters of difference between these brothers. It provided not only for a finding, but that the arbitrators should decide the manner in which the debtor party should liquidate his indebtedness to the other. That they contemplated that the liquidation should be made by conveyance of real estate is evidenced by the fact that the submission required that certain of the partnership real estate should be conveyed by defendant to the arbitrators in trust to be held by them for satisfaction of tbe award. Tbe award, under the liberal and reasonable interpretation to which it is entitled, is in every respect in compliance with the sweeping terms of the agreement of submission.

The discontinuance of a pending suit by the submission and award does not determine the validity of the award. That question may be raised in a proper action to show that the award was induced by fraud, or that it is not responsive to the terms of the submission, and, therefore, invalid on its face. Cunningham v. Craig, 53 Ill. 252. Such an action, however, does not open the doors of the court to the trial and adjudication of the matters submitted to arbitration. They cannot be inquired into so long as the award is in existence. Neither can the award be attacked in the suit which was taken from the court and submitted to arbitration. Of course, there is open to plaintiff the remedy of an independent action to vacate the award on the ground of fraud, providing he can successfully avoid the charge of laches or waiver and the more serious obstacle presented by the Ohio .judgment.

The decree is reversed, with costs, and the cause is remanded with directions to dismiss the bill.

Reversed and, remanded.