Ledlie v. Gamble , 35 Mo. App. 355 ( 1889 )

Thompson, J.,

delivered the opinion of the court.

This was an action for the value of certain services, alleged to have been rendered by the plaintiff for the defendant at his special instance and request. The petition contained four counts. The answer was a general denial. The parties entered into a stipulation submitting the controversy to an arbitrator. He made an award in favor of the plaintiff.. The defendant thereupon filed a motion to vacate the award, on the ground that it was the result “of a fraudulent combination and of undue influence practiced between the plaintiff” and the arbitrator ; charged that the award was in fraud of the rights of the defendant and the result of a combination and conspiracy to bring about the result as reached by the arbitrator. The motion was supported by the affidavit of the defendant alone. Most of the statements in his affidavit were made on information and belief. They, except one, were met and repelled by counter-affidavits.

The fact not thus repelled, and which is admitted, is that, at the time when the submission was made and when the hearing before the arbitrator took place, the attorney for the plaintiff was counsel for the arbitrator in some other matter the nature of which is not disclosed. The defendant’s affidavit shows that he did not know this fact at the time when he agreed to the submission, but it does not state that it did not come to his knowledge before the hearing took place before the arbitrator, and the record shows that a considerable time elapsed between the twro events. If he knew of the fact before the hearing, he should have objected to it, and brought the matter to the attention of the court and moved to vacate the order of submission, which motion would have addressed itself to the court’s discretion. Such a case is analogous to that where a party knows of a ground of disqualification in a juror, but nevertheless allows the trial to proceed without objection, taking his chances of a favorable verdict, and then, if the verdict is against him, making his objection for the first time by motion for a new trial, — in which case it is well settled his objection will not avail. Lisle v. State, 6 Mo. 426; State v. Daniels, 66 Mo. 207, 208; 1 Thomp. Tr., sec. 114, and cases cited in note 8. In the case of a juror, in order to make such an objection available after verdict, it must appear, not only that the disqualifying fact was unknown to the objecting party before the trial, but also that it would not have been disclosed to him on a proper inquiry. Ib., p. 113, and cases cited. Moreover, for the purposes of this rule the knowledge of the attorney is the knowledge of the client, lb. Hence it has often been held that, in an affidavit in support of a new trial on the ground of the disqualification of a juror, the affiant must allege that not only himself but also his attorneys were not informed of the disqualifying circumstance in time to make the objection seasonably. Achey v. State, 64 Ind. 56; Booby v. State, 4 Yerg. (Tenn.) 111; State v. Tuller, 34 Conn. 280; Clough v. State, 7 Neb. 320; Morrison v. McKinnon, 12 Fla. 552; Brown v. State, 60 Miss. 447; M'Clure v. State, 1 Yerg. (Tenn.) 206, 219. We know of no reason why these principles should not apply to motions to set aside the awards of arbitrators. The affidavit of the defendant does not exclude the conclusion that the circumstance complained of was known to his counsel at the time when the submission was agreed upon, though unknown to himself; nor is it stated that it might not have been discovered by the defendant by reasonable inquiry.

On the other hand, the affidavit of the arbitrator and also that of the plaintiff show that the defendant was the moving party in naming the gentleman who was selected to act as arbitrator. The affidavit of the arbitrator also shows that he consented to act as arbitrator at the personal solicitation of the defendant, who was a friend and customer of the arbitrator. Neither of these statements is contradicted. The affidavits, then, leave the case as one where the defendant was the moving party in nominating the arbitrator ; where he selected a friend with whom he had business relations ; and where he is now asking the court to vacate the award because of the discovery of the fact that the arbitrator had business relations with the attorney of the plaintiff. On this ground he is basing a charge of fraud, conspiracy, collusion and undue influence, and dragging into the charge a reputable, member of the bar. For a party to select a gentleman to act as arbitrator in the settlement of a controversy, and then, because the award goes against him,- to make, without substantial evidence to support it, charges against the arbitrator which, if made under circumstances not privileged, would be grossly libelous, is, to say the least, an ungr acious thing. It is still worse when the accusation is leveled also against a reputable member of the bar.

The appeal is so plainly without foundation that the judgment of the court overruling the motion to vacate the award, affirming the same and rendering judgment thereon, will, in accordance with the prayer of the respondent, be affirmed with ten per cent, damages.

All the judges concur.