Forshey v. G. H. & H. Railroad (16 Tex. 516, 1856)

Wheeler, J.

The petition for the writ of error contains more certainty of description, than in the case of Wright v. Williams, (12 Tex. R. 35,) in that it states the nature of the judgment. It could not be described by the amount, for the reason that it was for no certain sum. This is stated, and distinguishes it from any other judgment rendered for any certain amount. Though the description of it is less certain than it might have been, still we think it may be held sufficient under the practice of the Court; which lias been, as far as possible, to facilitate the remedy by dispensing with forms. The only effect of sustaining the motion would be to impose upon the party the needless expense and delay of proceeding anew.

It has been ruled expressly, (Roberts v. Sollebullus, 10 Tex. R. 352,) and is well settled by the uniform practice of the Court, that an averment in the petition for the writ of error, that the defendant in error is not a resident of the State, will authorize service on the attorney. The motion to dismiss is overruled.

The case was submitted to the Court on the motion of the appellant to have judgment entered upon the award, the objections of the appellees, and the exceptions of the appellant to the legal sufficiency of the objections. The Court overruled the exceptions and sustained the objections to the award, on the ground that the submission to arbitrate was not in accordance with the statute, and, consequently, the award not a good, statutory award.

If the Court was right in its judgment, it must be because, by the agreement of the parties, the two arbitrators chosen by them were empowered to choose and did choose a third arbitrator or umpire, before they had heard the evidence and ascertained that they could not agree: for in every other respect, there was a literal compliance with the statute. It cannot be doubted that the parties have adopted and pursued, substantially, the statutory remedy. If they have not entitled themselves to all the benefits of that mode of trial, it is because there has not been a technical compliance with the very letter of the statute, in respect to the time of choosing an umpire ; and because the proceeding under the statute is to be construed strictly, so as to require an exact, technical, and literal compliance with its provisions. It must be admitted that this would be to apply to this statute and the proceedings under it, a strictness of construction which has never been applied, and is not warranted by any principle by which Courts are governed, in the construction of statutes regulating civil proceedings in general. Such strictness is applied only in the construction of penal statutes, or proceedings under statutes which, it is deemed, may operate harshly or oppressively : as proceedings under attachment laws ; which are construed strictly, and sometimes even literally, in reference to the requirements of those laws. But to apply such a construction to the “ Act to authorize the settlement of disputes by conciliation or arbitration,” would not be in accordance with any principle heretofore applied in the construction of civil proceeding and remedies in general: certainly it would not be in harmony with the declared opinion of this Court, that “ the objects to be effected by the Act, invoke a liberal construction of its provisions.” (2 Tex. R. 470 ; 3 Id. 164.) To call that a liberal construction, in furtherance of the remedy, which should deny parties the benefit of that remedy, merely because, for their mutual convenience, they had anticipated and provided in advance, against the necessity of a second trial, in the event of the disagreement of the arbitrators chosen by them, would be an abuse of terms. Such a construction of the statute might well suggest the application of the maxim, “ Qui Imreb in litera, hceret in cortice.” The law looks deeper than the mere shell or letter of a statute. It “ respects the effect and substance of the matter, and not every nicety of form and circumstance.” (Co. Litt. 283.) In interpreting a statute, “ it is “ not in general, a true line of construction to decide according “ to the strict letter of the Act; but the Courts will rather con- “ sider what is its fair meaning, and will expound it differently “ from the letter, in order to preserve the intent.” (3 Rep. 27.) What is the substance of the provision to be complied with, construed according to its fair and obvious meaning and intent ? It is that each party shall choose an arbitrator ; and to ensure a decision, if they disagree, they shall select an umpire. (Hart. Dig. Art. 10, 12.) All this has been done. Can it make any difference in effect and substance, that, with the consent of parties, the arbitrators chose the umpire before they had disagreed ? Can that be deemed a fatal departure from any indispensable or essential requirement of the statute ? It seems, there was a disagreement; for the award, though signed by all, purports to be the award of a majority. That majority must have been, either the two chosen by the parties ; in which case there having been an umpire chosen was a merely unnecessary and immaterial matter ; or it was the concurrence of one of them with the umpire; in which case the event must have happened, which rendered the choosing of an umpire necessary : and whether he was chosen before or after the disagreement, it would seem, was a matter equally unimportant and immaterial. Upon either supposition, the award was rendered precisely in the manner, which the statute contemplates. The course pursued was convenient and expedient; ensuring a decision, without the trouble and expense of two trials : and convenience and expediency are always consulted in administering- remedies in civil proceedings..

It seems clear upon principle, that there was no material departure from the substantive provisions of the' statute. But we find authorities in point, which are decisive of the question. It will not be denied that the same rule of construction should be applied to the words and provisions of the statute, as to those of an agreement to arbitrate in the absence of the statute. That is, the terms or words employed in the statute, should receive the same construction, as the same terms or words in an agreement, by which a case was submitted to arbitration. The rule of construction applicable to each, is, in this respect, the same ; they are to be alike construed according to the intention of the parties who made them. In the one case, we look to the intention of the Legislature ; in the other, to the intention of the parties to the contract or agreement.— The same intention must, in general, be collected from the same words, whether employed in a statute, or in- á written agreement between parties. (9 B. & C. 752.) And in the case of Van Courtlandt v. Underhill, (17 John. R. 405,) where the agreement was to submit the matter in question to the decision of two persons, indifferently chosen by the parties, who were, in case of their disagreement, to choose a third, it was held that the arbitrators chosen might nominate an umpire, before ascertaining that they could not agree. So in the case of Rigdon v. Martin, (6 Har. & J. 403,) where two arbitrators were appointed with authority to choose a third in case they should disagree, it was held the two might choose the third before they disagreed, and, if the award be signed by all three, it is of no importance whether he acted before, or after, or without any disagreement. Here the terms of submission, any material departure from which would be fatal to the award, a.s certainly contemplated the choosing of an umpire in the event of disagreement, as it can be supposed the words of the statute contemplate the happening of that contingency before the exercise of the privilege. But it was held that the time of choosing the umpire was wholly immaterial; and that it was of no importance whether he was chosen and acted before, or after, or without any disagreement. It cannot be doubted, that this is the good sense of the matter ; and that a different interpretation would be, to adhere to the strict letter, regardless of the substance. According to these authorities, it would be no objection to the award, as a good statutory award, though the arbitrators had chosen the umpire before they disagreed or heard the evidence, even without the express consent of the parties. It would have been no material departure from the object and intention of the statute ; which is to ensure the decision at all events. Certainly then, it was competent for the parties to anticipate and provide, in advance, against so probable an event as the disagreement of the arbitrators, chosen by them, and expressly to waive the necessity of first ascertaining by experiment, whether they would agree, before choosing an umpire. Their having done so can be no objection to the award.

It may be true, in point of fact, that, in entering into their agreement to arbitrate, the parties did not contemplate a proceeding under the statute. Whether they did or not, cannot be certainly known from anything in the record. Nor is it material. They proceeded under the statute, and have substantially complied with its provisions ; and the award must, consequently, be held to be a good, statutory award, capable of being enforced in the manner provided by the statute : that is, by being made the judgment of the Court. It may be true that the parties did not contemplate this mode of enforcing the award; but their agreement of submission does not provide any other mode. It contains a stipulation that the money awarded shall be paid ten days after notice of the award served. They doubtless entertained the reasonable expectation that the unsuccessful party would comply, in good faith, with the terms of the agreement; and that there would be no necessity of any proceeding in Court to enforce it; but not having done so, there was no alternative left the other party, but to resort to his legal remedy. It cannot be supposed, that the agreement to perform, and its breach by the defendant, can deprive the plaintiff of his right to pursue his legal remedy to enforce performance. That is the very reason why the law affords a remedy in such cases. It is the reasonable and fair supposition, that men will comply with their lawful agreements and ’’undertakings ; but experience having shown that they do not . always do so, the law has afforded the means of coercing ■■■compliance. If, in this case, as in the case of Owens v. Withee, (3 Tex. R. 161,) the parties had contemplated a different remedy from that given by the statute, by the very terms ■of the agreement, securing performance of the award by a penalty, there might be more reason to hold, that they had waived their right to enforce performance in the mode provided by the statute. But they have not done so ; but have simply agreed to perform within a specified time. In the absence of any express agreement to perform, the law would imply one ; and it is because of this implied agreement that the legal remedy is given where there is no express agreement; but it would be quite preposterous to hold that an express agreement to perform an award within a specified time, would deprive the party entitled to demand performance, of the remedy provided in case of its breach.

The present is plainly distinguishable from the case of Owens v. Withee, before referred to. There, instead of three arbitrators, that is, two, with a third as an umpire, as the statute contemplates, seven were chosen and named in the agreement; which, moreover, provided that their award should be “ final, under the penalty of two thousand dollars, for the forfeiture of the party failing to comply with said award.”— The award was signed by five only of the arbitrators. The submission and proceedings in that case, were not at all in conformity to the statute; and, consequently, it was held that the award was not a good statutory award. But at the same time, it was held that the statute should receive a liberal construction. So also in Green v. Franklin, and other decisions of this Court, it has been held that awards are to be liberally and favorably regarded ; and mere technical objections to them are not to be countenanced. Upon such principles, it is clear, the award in this case must be upheld. (1 Tex. R. 497; Id. 64; 2 Tex. R. 185 ; 11 Id. 404.)

We deem it unnecessary to consider separately the several other objections urged to making the award the judgment of the Court. We have heretofore decided that, although the parties to a statutory award have not reserved the right of appeal, and have stipulated that the award shall be final; still, the Court may refuse to enter judgment upon it, and may set it aside, for the causes for which a Court of Equity will set aside a common law award. But if it be not set aside for such cause, it must be made the judgment of the Court. To authorize the interference of a Court of Equity in the case of an award, we have held, there must appear to have been fraud in the party, or partiality, misconduct, or gross mistake on the part of the arbitrators. (Payne v. Metz, 14 Tex. R. 56.)— Where an award is within the submission, nothing, in a word, will be a sufficient objection to making it the judgment of the Court, under the statute, which would not be sufficient to set it aside in a Court of Chancery. There is no pretence that the award in the present case was not within the submission : and where that is the case, it is well settled by numerous decisions, that a Court of Chancery will not set it aside, except for partiality and corruption in the arbitrators, mistakes on their own principles, or fraud and misbehavior in the parties. (Brown v. Green, 7 Conn. 536 ; Ormsby v. Bakewell, 7 Ham. 1st Part, 98 ; Herrick v. Blair, 1 John. C. R. 101 ; Bumpass v. Webb, 4 Porter, 65 ; Head v. Minor, 3 Rand. 122 ; Shermer v. Beale, 1 Wash. Va. 11 ; Aylwin v. Perkins, 3 Dessau. 297 ; Fitzpatrick v. Smith, 1 Id. 340 ; Wheatley v. Martin, 6 Leigh, 62 ; Radcliffe v. Wightman, 1 McC. Ch. 408 ; 2 Story’s Eq. tit. Awards and notes; 1 U. S. Eq. Dig. tit. Arbitrament and Award IV.) No such causes were opposed to making the award the judgment of the Court in this case. It was proposed to impeach it by parol proof to the effect, that the arbitrators had allowed the plaintiff compensation for services, during a period, when he was not entitled to such allowance, and did not claim it before the arbitrators ; and that they had not given its due weight to the defendants’ evidence, in support of their claim in reconvention. This it was clearly not competent to do. In the case of The State, use,