Dunham Lumber Co. v. Holt , 123 Ala. 336 ( 1898 )

McCLELLAN, C. J.

This is a bill in one aspect to set aside and annul a judgment entered upon a statutory award. The grounds upon which the right to the relief prayed in this connection is rested are stated in the tenth paragraph of the bill, as follows: “That it was the agreement and intention of the complainant (the Dunham Lumber Co.) and of the said W. 0,. Holt (the respondent) to'submit every existing difference between them, equitable as well as legal, to the said hoard of arbitration, and that upon such agreement and understanding, and on account thereof, complainant agreed to submit existing differences to a board of arbitration, including the suit in the circuit court of Butler county. That the said suit was dismissed by the said W. C. Holt under said agreement and understanding. That if the said articles of submission do not embrace the said $6,185.82 received by said Holt for or on account of the complainant, the omission to embrace the same therein was the unintentional mistake of the scrivener of said articles of submission, or ’it was the intentional omission and fraud of W. C. Holt. • That TV. (I Holt stated to the complainant at the time of signing said articles of submission that said matters were included in the. articles to be considered by the said arbitrators on said submission, and complainant so believed uptil upon the objection by W. C. Holt before the arbitrators, and the'refusal by said arbitrators to consider and pass upon said matters. That said matters were a subsisting defense on the part of the conn plainant to the said YV. C. Holt’s right of action upon which lie commenced his suit in the Butler circuit court, and Avas a legal subsisting off-set or defense to the debt or the demands which the arbitrators ascertained that the complainant Avas indebted to the said TV. C. Holt.” The effort here is obAdously to aver mistake or fraud, one or the other but neither affirmatively. So that the averment of each must be sufficient or neither is averred. It may be that the aArerment of mutual mistake in the terms of the submission as committed to writing is sufficient. But the averment of fraud clearly is not. For one to misrepresent to another the contents of a writing Avhich both can read, which both have an opportunity to read, Avhich the one does not fraudulently prevent the other’s reading, and which both sign is not a vitiating misrepresentation and is not in legal sense a fraud. That is all of fraud that is attempted to be averred in this bill. But the bill is perhaps amendable in this respect, and we do not rest our conclusion that the bill is without equity in the aspect under consideration on the defects to which we have referred. There is another view, however, upon which the bill as one to annul a judgment entered upon a statutory award is without equity. The mistake or fraud attempted to be alleged is not averred as affecting or tainting the action of the arbitrators in making the award or the circuit court in entering it up as a judgment, but only as going to the articles of submission. The arbitrators made no mistake in the matter as it was submitted to them, nor of course the court and no fraud was practiced or attempted on them or the court. The mistake, if any, was committed by the parties in framing the submission, and if any fraud was practiced it was by one of the parties upon the other in respect of the contents of the writing by which the submission ivas made. And it appears by the bill that if any mistake had in fact supervened it was known to both parties before the award was made; indeed while the arbitrators were engaged in taking the testimony in the case. And so if fraud was committed that was likewise then known to both parties. On this state of case — and it is presented here beyond the aid of amendment — no relief can be granted by the chancery court — no equity is shown by the bill in this aspect. The complainant should have rejudiated the submission when it discovered the mistake or fraud. Instead, it went on in execution of the submission to a final award which has been entered as a judgment of a competent court. In such case the complainant cannot now attack the award and judgment for infirmities of the submission. The doctrine is thus broadly stated by the authorities: “The court, on motion, will set aside a submission which has been obtained by fraud, or where there is a mistake made in drawing it up, or where the arbitrator is interested, prejudiced, or neglects to act; but an award Avill not be set aside because of fraud or mistake in the submission.” — 2. Am. & Eng. Encyc. Law, 594. We need not adopt this proposition in its fullest extent for the purposes of this case. It is only necessary here to hold as we do, that where the fraud or mistake in the submission to arbitration comes to the knowledge of the party who complains of it before an award is made, and he does not then repudiate the submission but proceeds under it till an award is made, he cannot afterwards impeach the award on the ground of such fraud or mistake.

The bill, however, -has equity in another aspect. It alleges that Holt has a judgment against the complainant in the sum of about fifteen hundred dollars, which he is proceeding to enforce, that Holt is justly indebted to complainant on account extraneous to the judgment in the sum of over six thousand dollars, and that he is utterly insolvent and that he owns no property liable to the demands of complainant and subject to process for the collection of debts under the laws of the State. And on these facts there is an appropriate alternative prayer, for relief by way of setting off Holt’s indebtedness to complainant so far as necessary in satisfaction of Holt’s judgment against complainant, etc., etc. These facts presented a case for equitable interference and relief.—Martin v. Mohr, 56 Ala. 221; White v. Wiggins, 32 Ala. 424; Watts v. Sayre, 76 Ala. 397, 400. And it follows that the decree of the chancellor sustaining the motion to dismiss the bill for want of equity must be reversed. A decree will be here entered overruling that motion and allowing respondent thirty days in which to demur, or plead to, or answer the bill.

Neversed and rendered.