Hooper v. Pennick

¶11. Objection is made by defendant because the court did not try the equitable or fraud defense prior to the law action and not in the presence of the jury. No objection was made by defendant at the trial on account of this procedure which was had to save time. It is now too late for defendant to complain. The defendant tacitly consented to try the equitable defense and the defendant’s counter*386claims at the same time. The court merely rendered its decision, which was tantamount to informing the jury that the award was conclusive upon the parties as to all matters submitted to the arbitrators.

¶2There was no error in this regard. See, as somewhat in point, Small v. Lutz, 41 Or. 570 (67 Pac. 421, 69 Pac. 825); Cody Lbr. Co. v. Coach, 76 Or. 106 (146 Pac. 973).

¶3We concur in the finding of the Circuit Court as to the equitable defense.

¶4Defendant claims the plaintiff fraudulently represented that there were about 18 tons of hay in the barn on the leased premises, for which defendant was charged for one half or nine tons when there were only six tons, for which defendant should have paid for one half or three tons only. Defendant and plaintiff measured the hay, and defendant computed the amount and furnished the arbitrators with figures showing there were eight tons and 1,520 pounds in Hooper’s half. The hay afterwards settled, and there is a discrepancy in the measurements and estimates made two or three months afterwards. Defendant Pennick claims that poles were placed under the hay for the purpose of deception. Hooper denies any deceit. He did not figure the amount of the hay, but says there were 25 loads of about 1,500 pounds of hay each. Defendant’s second measurement was made after the hay was used, from marks on the barn, and is but little better than an estimate. Prom the typewritten testimony we cannot say there was any fraud in the matter on plaintiff’s part. The trial judge saw and heard the witnesses in the case, and his. findings are entitled to great weight. The award in question embraced numerous complicated farm and stock transactions, and was not impeached *387by defendant. Hooper complied with the award, and moved off the premises, leaving his share of the hay on the place. Pennick received the benefit of his acts.

¶52,3. Awards are favored in law, and reluctantly set aside. Every presumption is in favor of their fairness. The burden of proof is on the party seeking to set them aside to do so by clear and strong proof: Brush v. Fisher, 70 Mich. 469 (38 N. W. 446, 14 Am. St. Rep. 510); Roberts v. Conswmer’s Can Co., 102 Md. 362 (62 Atl. 585, 111 Am. St. Rep. 377).

¶6We read in 2 E. C. L., page 398, Section 40:

“If the actions of a party, with full knowledge of all the facts, are such as to amount to an acceptance of an award, he will be held to have waived his right to object thereto. One receiving the fruits of an award should not be allowed thereafter to question its validity.”

¶7We find the following in 2 E. O. L., page 386, Section 32:

“The award of arbitrators, acting within the scope of their authority, determines the rights of the parties as effectually as a judgment secured by regular legal procedure, and is as binding as a judgment, until it is regularly set aside or its validity questioned in a proper manner. Their decision on matters of fact and law is conclusive, and all matters in the award are thenceforth res judicata, on the theory that the matter has been adjudged by a tribunal which the parties have agreed to make final, a tribunal of last resort for that controversy. And this has been held true even in a case in which one of the parties neglected to present portions of his claim. He had his chance, and, after the award, was concluded thereby, and could secure no relief.”

¶8There is no claim of improper conduct on the part of the arbitrators. It may be that neither party pre*388sented Ms case as thoroughly as it might have been portrayed to the arbitrators, bnt that is not to be expected in a proceeding of that Mnd. No valid reason appears from the record for setting aside the award.

¶94. Defendant reserved an exception to the following remark, made by the court while instructing the jury:

“You will notice that the object of this arbitration was to prevent a lawsuit, but a lawsuit happened just the same.”

¶10The court stated what the jury must have known from the proceedings at the trial. It was a mere comment on the efficiency of such an award. It was as fair to one of the parties as to the other. Whether it was strictly necessary or not, it was not a reversible error.

¶115. Error is predicated upon the charge to the jury to the purport that the award was binding upon the parties as to all matters embraced in the award. The court fully explained to the jury that if they found that the items included in defendant’s counterclaims “were not embraced in the terms of the arbitration as submitted to the arbitrators,” they should deduct the amount due defendant thereon from the amount of the award. This was as favorable to the defendant as the law will permit.

¶12The testimony tended to show that all of defendant’s claims were fairly presented to the arbitrators, and embraced in, and settled by the award. There was no error in the charge to the jury.

¶13Finding no error in the record the judgment and decree of the Circuit Court are affirmed.

¶14Affirmed.