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fered by the defendant, we see nothing in the might be nearly as anxious, ander such cir

! record which would warrant this court in cumstances, to avoid a civii suit as a crimdeclaring that, as a question of law, their inal proceeding, realizing that in the former finding is against the evidence.

the facts would be brought before the pubAs we stated in the main opinion, the Su- lic as readily as in the latter proceeding. , in the case

The sue

here quoted the funguage upon which the ap ter in a civil action

, not alone upon the note

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pellant so implicitly relies, also uses the fol- executed by him to her, but also the right lowing language immediately following that to sue him for money had and received as to quoted: "Indeed, the court is not bound to the sums represented by all the other notes, believe an interested witness against such a · if said notes were in fact fictitious, subject, presumption if the latter satisfies his mind” of course, to the defense of a bar under the --citing section 2001, subd. 4, Code Civ. Proc. : statute, or to any other legal defense. If The jury and the court appear to have not the defendant desired that her son should been satisfied that the evidence overcame the not be sued in a civil action, and signed the presumption. On the contrary, their minds note in dispute in consideration of such an seem to have been satisfied by the presump- , agreement on the part of the plaintiff, we tion as against the declarations of the wit cannot see that it would be particularly manesses directed against such presumption.

terial to ascertain what the specific reason But the learned counsel seems to have was that prompted her desire to prevent the formed a total misconception of certain lan- institution of a civil suit against Walter. guage employed in the main opinion, when he The defendant might have believed, from her says that "it means that it is conceded by inspection of the notes, or from any other reason of the testimony that Walter Morris- ¡ circumstance brought to her notice, that said sey was about to be arrested on a felony notes were forgeries, the result of the crimcharge, and she (the defendant) desired to i inal acts of her son; yet, if the evidence, prevent it," etc. We were discussing the presumptive and otherwise, fairly warrants probable specific reasons which might have the inference that she was moved to sign induced Mrs. Morrissey to sign the note in the note solely because of an agreement upon consideration of forbearance on the part of the part of the plaintiff that she would not the plaintiff to institute a civil action against bring a civil suit against Walter, the mere Walter. This discussion was only in reply fact of her belief that her son had committed to the elaborate argument of counsel to the : a criminal offense would be, it seems to us, effect that the evidence on the part of the : immaterial. All that Mrs. Morrissey said defendant showed threats by the plaintiff

about her son having been accused by the of a prosecution of Walter for forgery, for

plaintiff of committing forgery, and that the which reason alone, he argued, the defend- latter would prosecute him for the crime, was ant signed the note. We stated that in our

denied by Miss Keating. The jury, as stated opinion the evidence fairly warranted the

in the main opinion, seem to have paid no inference that she signed the note upon an

attention to the testimony of the defendant. understanding that the plaintiff would re

But it is enough for us to be satisfied that frain from suing Walter in a civil action ;

the evidence, both direct and circumstantial, that (if that were true), while it was not

fairly justifies the conclusion that the considnecessary to search for specific reasons which

eration for which the note was signed was thus influenced her, yet it was equally as

based upon an understanding that the plainreasonable as any other deduction from the

tiff would forbear suing Walter in a civil evidence that she was almost as much in

action; or that the evidence, in the minds fear of the consequences of a civil as of a

of the jury and the judge trying the case, criminal action; and that that fact might

was not sufficient to overcome the presumphave been the cause moving her to execute

tion of a valid consideration, and that the

; the note in consideration of forbearance up

record before us is not such as would suson the part of the plaintiff to sue Walter

tain a conclusion by this court that, as a in the civil courts. It appeared from the

matter of law, the evidence is too weak to uncontradicted evidence in the record that

support the verdict of the jury and the findthe plaintiff, at the first interview with the

ings of the court. defendant, exhibited the 14 notes to the

The petition for a rehearing is denied. latter, said to her that she did not know

We concur: CHIPMAN, P. J.; BURpersons bearing the names ostensibly sub

NETT, J. scribed to the notes, and that such names could be found neither on the great register

(77 Kan, 842) nor the tax roll of the county. While this MEEK V. METROPOLITAN ST. RY. CO. did not involve upon the part of plaintiff the

(Supreme Court of Kansas. July 5, 1907. specific charge of a crime against young Mor- Rehearing Denied Sept. 21, 1907.) rissey, the inference was that the transac

CARRIERS - CARRIAGE OF PASSENGERS AC tions represented by the notes were not al- TIONS-EVIDENCE-ADMISSIBILITY. together devoid of fraud of some sort, and

In an action for injuries to a street car We ventured the opinion, therefore, that Mrs.

passenger, a question to plaintiff whether the

conductor asked him to write his name on a Morrissey, if receiving such an impression, slip of paper was properly excluded.

Error to District Court, Wyandotte Coun- | question of fact, to be determined from all the ty; J. McCabe Moore, Judge.

circumstances of the case. Action by John G. Meek against the Met

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 9, Chattel Mortgages, § 87.] ropolitan Street Railway Company. Judg

(Syllabus by the Court.) ment for defendant, and plaintiff brings error. Affirmed.

Error from District Court, Reno County ; Rush L. Fissette and Bird & Pope, for

P. J. Galle, Judge.

Action by the First National Bank of Cobleplaintiff in error. Miller, Buchan & Miller, for defendant in error.

skill, N. Y., against W. F. Dendy and H. O. Peck. Judgment for plaintiff. Defendants

bring error. Affirmed. PER CURIAM. Action brought by John G. Meek to recover damages from the Metro

A. M. Harvey and John V. Abrahams, for politan Street Railway Company for personal plaintiffs in error. John D. Milliken and injuries alleged to have been sustained by him

Whiteside & Malloy, for defendant in error. while riding in a street car of defendant.

MASON, J. The First National Bank of The car, running at a speed of about three

Cobleskill, N. Y., recovered judgment upon miles an hour, ran into one just ahead of it going in the same direction, and he claims

a verdict in a replevin action brought by it that the resulting jar injured his back and

against Dendy & Peck for the possession of kidneys. Under the testimony there was a

a number of cattle, and the defendants prose

cute error. fair question of fact as to whether he was really hurt by the collision, and it was set

The plaintiff claimed as assignee of a chattled by a verdict in favor of the defendant.

tel mortgage executed by L. M. Hyre to Zeb The inquiry as to the plaintiff's ability to

F. Crider Commission Company. Three degive bond for costs, about which complaint

fenses were interposed: (1) That the mortis made, could not have been prejudicial, es

gage was void; (2) that the cattle replevied pecially after the full examination on the

were not in fact those referred to in the same subject which had been previously made

mortgage; and (3) that, even if they were, by both parties. The hypothetical ques

the description was so defective that the tions objected to were properly allowed.

record did not impart constructive notice of United Commercial Travelers of America v.

the fact-it being admitted that the defendBarnes (decided May 11, 1907) 91 Pac. 293.

ants purchased them without actual notice No error was committed in excluding the

of the mortgage. The attack upon the valid

ity of the mortgage is based upon the circumquestion propounded to plaintiff whether the conductor asked him to write his name on

stance that Hyre, the nominal mortgagor, neva slip of paper, nor do we find any good rea

er had any real interest in the cattle. They son to complain of the rulings of the court

were owned by the commission company, of in instructing the jury.

which IIyre was an employé. He signed the Judgment affirmed.

note and mortgage at the request of the company, and for its purposes. The defendants

argue that, as Ilyre had no title, a mortgage (76 Kan. 301)

executed by him could create no lien. There DENDY et al. . FIRST VAT. BANK OF

was an effort on the part of the plaintiff to COBLESKILL, X. Y.

show that as a part of the transaction the

company gave Ilyre a bill of sale of the cat(Supreme Court of Kansas. July 5, 1907.

tle, thereby vesting in him the legal title as a Rehearing Denied Sept. 21, 1907.)

basis for his making the mortgage. Probably 1. CIIATTEL MORTGAGES_VALIDITY-REPLEVIN the execution of this bill of sale was not esOF ASSIGNEE.

tablished; the reference to it in the evidence Where the owner of personal property takes

falling short of technical proof of that fact. a mortgage thereon from one aving no interest therein, securing an accommodation note be- But the omission is not important. The comtween the same parties, and assigns the note pany was the actual owner of the cattle. In and mortgage, the fact that the mortgagor never had any real interest in the property con

accepting and assigning the mortgage, it recstitutes no defense to an action brought by the

ognized Hyre as their formal owner as the assignee to replevin the property under the holder of the legal title. The execution of a mortgage, whether the defendant be a stranger bill of sale could add nothing to the force of to the transaction or a claimant under a party

such recoguition. By the purchase of the to it. 2. SAME-IXACCURATE DESCRIPTION.

note the bank acquired a valid lien on the In an action to recover the possession of cattle. That the mortgage secured accommopersonal property under a chattel mortgage dation paper was not a matter of any conin which it is inaccurately described, where the plaintiff relies upon the record as imparting con

cern to the parties to this litigation. structive notice, such erroneous description is

The question of the identity of the cattle not fatal to a recovery, if in spite thereof the replevied with those mortgaged was fairly instrument gives upon its face sufficient informa

submitted to the jury and their verdict is tion from which, by the aid of reasonable inquiry, the property intended can be identified ;

conclusive. It is true that a representative and whether that is the case is ordinarily a of the commission company was permitted to testify to matters in this connection of ment, but, if the submission is not made an which he had no personal knowledge, and

order of the court, it may be revoked at any

time before award. Feld, that the effect of a technical error may have been committed in

failure to file a submission in court before the this respect. But the sources of his informa- hearing was only to permit the parties to revoke tion were fully brought out, and upon consid- the submission, and prevent the court from aceration of the entire record we see no reason

quiring jurisdiction until filed, and did not affect

the right of the arbitrators to proceed to a hearto believe that any substantial prejudice to

ing. the defendants could have resulted. The description which the mortgage gave of the cat

Appeal from District Court, Third District; tle was defective. They were described as

before Justice T. D. Lewis. kept at a particular ranch; whereas, they

Action by Joseph S. Richards against Jowere in fact in another part of the county.

seph F. Smith. From the judgment entered Whether, notwithstanding this partial misde

on an award of arbitrators, plaintiff appeals. scription, the mortgage still gave sufficient in

Affirmed. formation by wbich the cattle could with rea- This is an appeal taken on the judgment sonable inquiry have been identified, was a roll, and is from a judgment entered on an question for the determination of the jury. award. The written submission of arbitra6 Cyc. 1037.

tion upon which the award is baseil, omitting Although complaint is made of the instruc- the title of the court, is as follows: "Purtions, we think they fairly presented this and suant to chapter 10, tit. 73, entitled 'Arbitrathe other questions involved, and that no tion,' Rev. St. Utab, 1898, the above-named ground is shown for disturbing the verdict. parties have agreed to submit, and by these

The judgment is affirmed. All the Justices presents do submit, a certain controversy concurring,

existing between them, wherein said Joseph S. Richards, plaintiff, claims that said defend

ant is indebted to him in a sum of money, (33 Utah, 8)

to wit, $3.5,500.00, as damages for not carryRICHARDS T. SMITH,

ing out a certain agreement made between (Supreme Court of Utah. Aug. 21, 1907. On him and the late Bishop Edward Hunter, in Rehearing, Sept. 20, 1907.)

regard to the purchase and sale of a certain 1. ARRITRATION AND AWARD · ARBITRATION piece of land, and which said damages said AGREEMENT-CONSTRUCTION.

defendant denies; and they each of them An agreement, submitting to arbitration a “controversy existing between the parties,”

have agreed to submit the question to arbiwherein plaintiff claimed that defendant was in

tration to four disinterested persons, with debted to him in the sum of $35,500, as damages privilege in said four persons to select a for not carrying out a certain agreement made between plaintiff and H., deceased, which dam

fifth at any time in the course of said proages defendant denied, constituted a submission ceedings that they may elect to do so. The of the question of the existence of the contract four arbitrators selected and chosen are as and the cause of action between the parties as follows: L. S. Hills and James Sharp, on well as the amount of damages plaintiff was entitled to recover, if any.

the part of plaintiff, and W. W. Riter and 2. SAME — AWARD – FILING - DUTY OF ARBI- John R. Barnes, on the part of defendant, and TRATORS--STATUTES.

they four, with a fifth one above provided Rev. St. 1898, § 3223, provides that, when for, in their election, are to hear the evidence a submission is made an order of court, the arbitrators may be compelled to make an award

and deterinine the cause; and the judgment which may be enforced as a judgment, and sec- of the majority of them, whether of the four tion 3227 declares that the award must be in or the five, shall be binding and final upon writing, signed by the arbitrators, or a majority of them, and delivered to the parties; that, when

the parties hereto. It is hereby agreed by the submission is made an order of court, the

the parties hereto that the four parties above award must be filed with the clerk, and a note named as aforesaid may select a fifth, either thereof made on the register. Held, that it is

after they have heard the testimony, and no part of the duty of arbitrators to file their award with the clerk; such filing being required

find that the majority cannot agree, or they by the parties only when the party filing the may select a fifth before they go into the award desires it to have the effect of a judg- | testimony, and he may sit with them, and ment.

the decision of the majority shall be binding. 3. SAME – JUDGMENT ENTRY AWARD DELAY IN FILING.

It is hereby stipulated and agreed that this No time being specified by a submission to

agreement be entered as an order of the disarbitrators, nor by Rev. St. 1898, § 3227, for trict court. This arbitration shall take place the filing of the award, mere delay in filing it

on the 30th day of September, 1902, and shall did not deprive the court of jurisdiction to enter judgment on the award.

be concluded on or before the 1st day of De

cember, 1902. The arbitrators may have all On Rehearing.

the powers given in said chapter aforesaid to 4. SAME – FILING SUBMISSION - HEARING

them, and they shall act in accordance thereTIME.

with. In witness whereof the parties have Rev. St. 1898, $ 3223, provides that it may be stipulated in a submission that it be entered

bereunto set their hands and seals this 6th as an order of the district court, and when so day of August, A. D. 1902. Jos. S. Richards. entered the stipulation cannot be revoked with

Jos. F. Smith." out the consent of both parties; that the arbirators may be compelled by the court to make

The submission was duly acknowledged, an award, wbich may be enforced as a judg- | and, on October 2, 1902, filed with the clerk

1906, judgment was, by order of the court, duly entered on the award.

P. T. Farnsworth, Jr., and C. S. Varian, for appellant. 0. W. Joyle, for respondent.

of the Third judicial district court for Salt Lake county. The arbitrators were sworn before a notary public and subscribed to an oath in writing, which was annexed to the submission and filed therewith. On October 14, 1902, the arbitrators made their award in writing, which, omitting title of court and cause, recited as follows: "Decision by Arbitrators. On the 6th day of August, 1902, the above-named parties entered into an agreement, pursuant to chapter 40, tit. 73, entitled 'Arbitration,' of the Revised Statutes of Utah of 1898, by which the abovenamed parties agreed to submit to arbitration a certain controversy existing between them, wherein said Joseph S. Richards, plaintiff, claimed that Joseph F. Smith, trustee in trust, defendant, was and is indebted to him in the sum of $55,500.00 as damages for not carrying out a certain agreement made between him, the said Joseph S. Richards, and the late Bishop Edward Hunter in regard to the purchase and sale of a certain piece of land, which said damages the said defendant denied. At the same time each of said parties agreed to submit the question to arbitration before four disinterested persons, with the privilege in said four persons to select a fifth at any time in the course of said proceedings as they might elect to do. That said four persons selected for arbitrators were L. S. Hills and James Sharp, on the part of the plaintiff, and W. W. Riter and John R. Barnes, on the part of defendant. That those four persons, on the 30th day of September, 1902, held their first meeting, and agreed then and there not to then select a fifth person, but to hear the eridence themselves, and, if thereafter they could not agree, then to make a selection of a fifth arbitrator. That on the said date plaintiff, Joseph S. Richards, introduced his case and made a statement thereof to said arbitrators. Adjournment was then taken until the 13th day of October, 1902, when they all met again, and, the witnesses being sworn, testimony was given on both sides. The parties having submitted their testimony, and the case being closed, the undersigned arbitrators took the same under advisement, and on this 14th day of October, 1902, make, conclude, and decide in favor of the defendant that there is no cause of action. [Signed] L. S. Hills. James Sharp. W. W. Riter. John R. Barnes."

On April 18, 1904, the award was filed with the clerk of said court, and on the same day notice thereof served upon the appellant, plaintiff below. On April 22, 1904, on motion of appellant, the court made an order extending the time 20 days in which to file objections to the award and to the entry of judgment thereon. Extensions were granted from time to time for the purposes aforesaid until August 15, 1904. On August 12, 1901, appellant filed a motion to vacate the award. This motion was denied by the court April 9, 1906, and on the 29th day of September,

MCCARTY, C. J., after making the foregoing statement of the case, delivered the opinion of the court.

Appellant contends that "the award is void because beyond the terms of submission, in this, the arbitrators undertook to determine the right of action as matter of law, which was not submitted but conceded or reserved by the parties." That is, it is urged by appellant that the submission on its face shows that the parties conceded that the contract with respect to the sale of land existed between them, and that there was a breach of the contract, and therefore the only question for determination submitted to the arbitrators was the amount of damages. From these premises it is argued that the appellant, on the face of the submission, was entitled to at least nominal damages, and that, when the arbitrators undertook to determine whether or not a cause of action existed in favor of appellant, they exceeded their authority. As stated by counsel for appellant in their brief, the submission takes the place of a complaint and answer and contains the admissions as well as the allegations of the parties. The "admissions" and "allegations' presenting the questions and issues submitted to the arbitrators were that the "parties have agreed to submit a certain controversy existing between them, wherein said Joseph S. Richards, plaintiff, claims that said defendant is indebted to him in a sum of money, to wit, $55.500.00, as damages for not carrying out a certain agreement made between him and the late Bishop Hunter, in regard to the purchase and sale of a certain piece of land, and which damages said defendant denies.” The foregoing recital in the submission shows that a certain controversy was submitted. The general rule, of course, is that submissions to arbitration are to be liberally construed, and that "courts do not travel out of their way for the purpose of overturning awards, but, on the other hand, will refrain from exact and technical interpretation, and will indulge every reasonable presumption, whenever there is any room for such indulgence, in favor of the finality and validity of the award.” 3 Cyc. 673. So construing the language containe:l in the written submission, we are of the opinion that it includes the questions of the existence of a contract and breach thereof, as well as the question of damages and the amount, if any, sustained; and that therefore it was within the authority of the arbitrators to determine the question whether or not a cause of action existed. It is quite true that, if the language is to be construed technically, and is to be interpreted under the rules of pleadings, there is some force to



the argument that the denial portion of the it is manifest, from the very nature of an written submission is simply a denial that award, that it must be made and concluded the plaintiff was entitled to $53,500 dam- before it can be filed. Section 3227, supra, ayes. Giving it such a construction, the de- provides that “when the submission is made nial would, in effect, amount to an admission an order of the court, the award must be that the defendant was indebted to the plain- filed with the clerk and a note thereof made tiff in a sum less than $55,500. But upon : on his register.” No time is fixed by the what theory is the submission to be con- statute when this must be done. It is evistrued most strongly against the defendant? dent, however, as we have suggested, that it It was plaintiff's document or pleading as i cannot be done before the award is made and much as it was the defendant's. Whatever concluded by the arbitrators, because before Was uncertain or incomplete about it was it is so made and concluded there is no plaintiff's uncertainty as much as the de- award to file. The purpose of making a subfendant's. However, we do not see anything mission to arbitration an order of the court in the writing to warrant the conclusion that is to give the award, when filed with the the parties intended to stipulate that the clerk and entered in the judgment book, as contract existed, or that there was a breach provided in section 3227, Rev. St. 1898, the thereof on the part of the defendant or the force and effect of a judgment. When the late Bishop Hunter, or that either of them arbitrators signed the award and delivered was indebted to the plaintiff in any sum on it to the parties, they did all they were auaccount thereof. Such was not the evident thorized or empowered to do under the statintention of the parties as expressed by the ute. It then devolved upon the parties themobvious and natural meaning of the language selves, if they, or either of them, desirused by them. The writing recites that ed the award to have the force and effect of "plaintiff claims" the defendant is indebted a judgment, to file it with the clerk and proto him in the sum named for not carrying ceed in the manner pointed out in section out a certain contract. No words are con- 3227. As neither the statute nor the terms tained in the writing from which it could be of the submission required the parties to file fairly implied that the defendant admitted the award with the clerk within a specified or conceded any part of the claim. Respond- time, the mere delay in filing, which either ent by his general denial clearly negatives of the parties could have obviated, did not any present liability, and this denial is also

deprive the court of jurisdiction to enter the a denial of any liability on the part of Bish- judgment appealed from. op Hunter. Such is what the parties evi- And furthermore, section 3228, Rev. St. 1898, dently intended it for and meant by it. In provides upon what grounds a court may ascertaining the meaning and intention of vacate an award, and delay in filing an the parties as expressed by the writing, we award is not one of the grounds therein must not separate portions of it and construe

specified. Boone v. Reynolds, 1 Sug. & R. parts most strongly against one or the other

(Pa.) 231; Patrick v. Batten, 123 Mich. 203, of the parties, but must consider and con- 81 N. W. 1081. strue the writing as a whole. When so con

The judgment is affirmed, with costs. sidered, we have no doubt that the finding of the arbitrators is within the issues sub- STRAUP, and FRICK, JJ., concur. mitted. 3 Cyc. 604. Appellant's next contention is that the ar

On Rehearing. bitratio: was not completed until the award

FRICK, J. A rehearing is requested in this was fiiel with the clerk, and therefore was

case upon tlie ground that we failed to spenot concluded within the time specified in

cially consider and pass upon the assignthe submission. The arbitrators were not

ment that the district court was without jurequired, under the statutes, to file their

risdiction, for the reason that the arbitrators award with the clerk. Section 3223 of the

held a session and heard the statement of apRevised Statutes of the state of Utalı, 1898,

pellant's case before the agreement of subprovides that, when the submission is made

mission was filed in court and before the an order of the court, "the arbitrators may

clerk made the entries required in a statube compelled by the court to make an award, tory arbitration by section 3223, Rev. St. and the award may be enforced by the court 1898. In view that we sustained the judgin the same manner as a judgment." And ment, and, further, directly held that the section 3227, Rev. St. 1898, provides that court had jurisdiction, we deemed the point "the award must be in writing, signed by now made by counsel as necessarily included the arbitrators or a majority of them, and within our decision. In deference to coundelivered to the parties." An award is de

sel's request, however, we have concluded fined as "the judgment or decision of arbi- to briefly state our reasons for holding trator's or referees in a matter submitted to

that the court had jurisdiction notwithstandthem." 1 Bouv. Law Dict. 205; 1 Words & ing the fact that the hearing may have been Phrases, 656. In 2 A. & E. Ency. Law (2d entered upon before the submission agreeEd.) 719, it is said: “The judgment of the ment was actually filed in court. This we arbitrator and also the paper on which it is have concluded to do without the formality written are called an 'award.'” Therefore, of a rehearing.

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