KNOCHE tI. OHICAGO, H. &:
P. ,BY. 00.
_ (Otf't:Uit Oourt. W; D·
M. & Sr. P. Ry. Co.
January 18. 1888;)
AlmJTRATJON AND AWARD-AGREEMENTS TO SUBMIT-VALIDITY.
An by an owner of land sought to be taken by a railway for right of way, to submit to arbitration the amount of compensation to be paid therefor, is valid, and binding upon the parties.
At Law. On motion to strike out portionof defendant's answer. This is an action brought by John ,P. Knoche against Chicago, Milwaukee &St. }laul Railway Company, for damages for the taking of his land by defendant company for right of way purposes,",uqder an alleged verbal agreement to which plaintiff consented to the entry upon defendant's promise to pay the damages sustained. The answer, among other defenses, alleged: .. And for a second and further amended answer to said petition the defendant admits that it is a corporation created and existing under and by virtue of the laws of the state of Wisconsin, and that it is engaged in the construction of a bridge across the Missouri river, .and Of a railroad, as in said petition alleged.· Defendant furtber says that it has constructed' its road across the portion of said plaintiff's land described in said petition, but that it has so constructed the byanli with the full knOWledge and c.onsen t <>fplaintiff; that in the summer of 18t:!6, and after said defendant had located its Uneaver plaintiff'S land, lind set the stllkesdesigtlliting the same, one. WiIIiltm B. Cham· berlain and J. W·.Nisr called upon plaintiff in 00, the right of way forllefeIulant's rail way across the said lands of said plaintiff; showed him where said line of defendant's road was located through said land; that the construction of said road over the same would enhance the value of the balance o.fadyantage and of plaintiff's land not taken for right of way, and would benefit to him; that said plaintiff thereupon agreed with said,Chamberlain and said Nier that defendant might proceed with the of its railroad across his said lands; and that, if he could not agree in the future with defendant upon the proper and just compensation to be paid for said land taken for right of way, and the damages, if any, to'the balance of his land not taken, be would select a person and ,defendant might select anothel" to lix upon, the amount of such compensation and damages, and. in case they. failed to agree, that he would then resort to the courts to fix thesamej thai, relying upon said ag"eement, defendant proceeded to and did lay down its tracks over and across the land of plaintiff, and took and appropriated a strip of land one hundred feet in width across and thtough the salDe for a right of· wlIyforits railroad'; that said plaintiff. in disregard and violation of his said agreement, never sought to agree with defendant up0l} the proper compensation and damages to, be paid bim by reason of the taking of said land for .right of way, and has never selected or asked defendant to select an arbitrator to fix said amount, although said defendant has always been ready and to ertdeavor to agree with plaintiff upon the amount to be so paid, or. in case of failure to agree. to select an arbitrator who, together with one to be so selected- by said" plaintiff, might fix said amount." The plaintiff, bY'consent, orally moved to strike out the foregoing portion of the answer. ' . Brown, Oha.pman&; Brown, for plaintiff. . :C. W Blair and PraU. MoCrary, Ferry &;'Hagerman,fotdefendant.
. , FEDERAL RE;PORTER.
THAYER, J., (oraUy.) A clause in a contract agreeing generally to submit all of the q)lestionsthat might arise under the contract to arbitration, is void; the same being against public policy, because the effect is to oust the jurisdiction of the courts. Nev:ertheless, it is competent for parties to stipulate in a 'contract that the value of property contracted to be sold or delivered shall be ascertained, or fixed by arbitrators chosen for such purpose. . Such special stipulations in contracts, relating to the manner in which the value.of things forming the subject-matter of the contract shall be ascertained, are valid. In the latter class of cases, parties cannot ignore the stipulation and sue on the contract; they must at least make an 'effort to have the valUe of the thing ascertained accordingto the stil1ulations in the agreement, before suit can be maintained. Motion overruled. . '
eARN 'lI. KENSLER·
.(Ot'rcuit Oourt. W. lJ. Mis8ouri. W;]). March 16.1888.)
NEW ,TBrAIr-OBJECTIONl!. TO VERDIOT.
AlthoughfactB are presented upon the trial whlch.would have fnduclld th& court to sustain defen dant's demurrer setting up that the contract sued on was contrary iO,tbe constitution and laws of the state, the jury having found Il q!Jestion of fact agoainst defendant, which the supreme court might hold sufficient to render him liable,and all the facts being preserved in the record by bill of excoJptions, the motion for a new trial will be overruled.
At Law. On motion fClt new trial. Graves « Aull and G. G. Vest, for plaintiff. Wamer, Dean« for defendant·
. BREWER, J. In overruling defendant's application for a new trial, I feel constrained to make these observations: The petition alleges that. plaintiff and defendant' jointly paid and delivered to the lottery company the sum of $10, for which amount the said company then and there duly delivered to, defendant two tickets, .and further that one of the tickets drew the capital prize, and thereafter the defendant received the money. To that petition the defendant answered, and for a second defense averred that both parties were citizens and residents of Missouri at the time of the tran8l1ction, and that the constitution and laws of Missouri prohibited dealing in lottery tickets. 'fo that defense the plaintiff· demurred, aud, after argument, I sustained the demurrer. ' While the exact facts ail they were afterwards developed on the trial may have been stated by counsel, yet the question was considered by me as though each of the parties had. in fact paid one-half of the dol· lars, -and the point of my decision "was that if each party had pahl" one-half, they jointly owned the tickets, and whatever might be received on those tickets; and if either got possession of the whole proceeds, tht