Pierce v. Kirby , 21 Wis. 124 ( 1866 )

Downer, J.

The plaintiff’s action is upon an alleged award of the committee of arbitration of the chamber of commerce of the city of Milwaukee. The only question which we consider it necessary to examine is, whether the alleged award is good as a common law award. It is essential to the validity of such an award, that there should be an agreement of the parties to submit their matters, or some particular matter, of difference to the arbitrators, and to abide by and perform the award. The agreement to abide by the award may be implied from the agreement to submit. The important inquiry then is: Was there any agreement made by Pierce and Kirby to submit the matter in difference to the arbitration committee of the chamber of commerce ? The complaint avers “ that the plaintiff and defendant, on or about the 8th day of October, 1864, submitted said matter of difference in writing, according to the constitution, rules and by-laws of said chamber,” &c. What is the evidence under this complaint of a submission in writing? It is, that the plaintiff presented bis sworn complaint to the board of arbitrators of the chamber of commerce, and that Kirby answered in writing the complaint; and these papers, which are somewhat like complaint and answer in ordinary actions at law, constitute the only agreement in writing of the parties, if any agreement there was. They are doubtless proceedings under the rules and constitution adopted by the chamber of commerce with a view to a compulsory reference or trial. We cannot construe them to be, or be equivalent to, the voluntary agreement in writing made and signed by both parties, in and by which they both agree to submit their matter in difference; and which is necessary to make a common law submission in writing. The paper called an answer, presented by Kirby to the arbitrators, is very far from containing any agreement of submission on bis part. Nor is there any evidence of a verbal or parol submission. The secretary of the chamber of commerce testified: “ I remember the circumstances of a submission and arbitration before the board of arbitrators of said chamber, between the parties to this suit.” It was urged on the argument that this was proof of a parol submission. But it is clear, from the other evidence, that he meant only such submission as was contained in the complaint and answer before the arbitrators, and such as is spoken of in the constitution and by-laws of the chamber, which might be made by one party only.

We have come to the conclusion that there was no submission valid at common law, and, of course, no valid common law award.

By the Court — The judgment of the circuit court is affirmed.