Bazil G. O'Bryan, Appellant, vs. William M. Reed, Appellee, 2 Fla. 448

Opinion by Chief Justice Douglas : This case comes up by appeal from a decision of the Circuit Court for Hamilton county, made at the last Fall term, overruling a motion which had been entered upon the order book of said Court; and a bond of submission and award, filed 17th day of February, 1848.— This motion was at the spring term of that year continued until the said fall term, and is in the following words, to wit: “ Ex parte.— Basil G. O’Bryan, in a matter of arbitration between said Basil and William M. Reed, Middle Circuit of Florida, Hamilton Circuit Court.

Motion that the said bond of submission and award be made a rule of court, as stipulated and provided for in said bond of submission, and that judgment be entered thereon and execution issue according to law.” The first

section of our statute, entitled

an act concerning arbitration and awards, (Duval’s Comp., 255, Thompson’s Dig., page 399,) provides for submitting matters of difference, &c. to arbitration, and declares that the parties to such submission “ may stipulate and agree either in the bond, &c. of submission, or by a separate agreement, that the said submission and arbitration shall be made a rule of any court in this State and the 2d

section enacts, “That when any submission is intended to be made a rule of court as aforesaid, an agreement to that effect in writing, signed by the parties, shall be filed in the office of the clerk of the court of which said submission is to be made a rule, and the clerk shall enter said rule.” The motion was made by the appellant, and it appears by the record of the proceedings in the cause, including certain affidavits filed by the appellant in the court below, (but which the appellee by his counsel insists are not a part of the record, because they were not brought into it by a bill of exceptions,) that, on the 13th day of April, 1847, the parties to this proceeding, under bonds mutually executed by them, agreed to submit all matters in controversy between them to arbitration — that arbitrators were mutually chosen by them, to whom those matters were submitted, and that said arbitrators, on the 23d day of April, 1847, made an award.

At the foot of the submission bond of the appellee, the only one in the record, is the following, viz : “ And it is further agreed that said award be made a judgment of the Circuit Court of Hamilton County, and said State” — which agreement is signed by (Wm. M. Reed) the appellee.

Whether such an agreement was appended to the bond by O’Bryan or not, the record does not show; and there is no authority to enter such a rule, unless the agreement to that effect in writing, signed by the parties, be filed; at least such is the express provision of the statute, from which we should not be inclined to depart, without some good cause shown, (if at all.) Here no cause is shown — it does not appear that there is any such agreement signed by the parties; or if, upon the equity of the statute, separate agreements signed by the parties were sufficient, and we were at liberty to presume that O’Bryan had signed one at the foot of his bond ; it is not shown that any effort was made to have it filed in court.

If, therefore, such an agreement was signed by O’Bryan, it cannot affect the case; but besides this, although the motion to make the submission and award a rule and judgment of the court, is alleged to have been made pursuant to that agreement, and substantially in accordance with it, yet we find by reference to the record, that, after the award was made and published, an agreement was entered into by and between the parties, that it should be opened and the matters referred to the same arbitrators, to make a new award; and that it was thus referred back, and one of the arbitrators, (Mr.

Purviance,) whose affidavit was taken and filed by the appellant in the court below, in support of said motion, states that he did, at the instance of the said O’Bryan and Peden, acting as attorney for Reed, make out the draft of another award, but the said draft was never executed or signed by the arbitrators.

It has been objected on behalf of the appellant, that there is no evidence to show that said Peden had any authority from the appel-lee to make the said agreement to open the said award, and that the appellee disaffirmed the agreement, and denied his authority to make it; but in looking into the affidavit of Mr.

Purviance, before men- ‘ tioned, which contains all that is said in the record of any such dis-affirmance and denial of authoritywe find that he states as follows, viz: After stating that the arbitrators under the bond of submission mutually executed between them, said O’Bryan and Reed, dated the 13th April, 1847, made an award, which was designed to be a final award at the time, goes onto 'say, “Thatsubsequently the parties met at the house of the affiant, for the purpose of further negotiating touching said award, with a view to explain away obscurities in it, (if any such existed,) and to extend the time for O’Bryan to return the order on Blood, or make indemnity for the same.” “ That, at such meeting, Reed was represented by James A.

Peden, Esq., his attorney, who made and signed an agreement touching the award, which affiant afterwards understood from Peden that Reed disaffirmed, and denied his (Peden’

s) authority in the premises.” Now the latter clause, “ which affiant afterwards understood from Peden,” &c., is all that the record discloses of the disaffirmance and denial of Pe-den’s authority by Reed ; and that, it will be observed, is hearsay testimony only, and is opposed by the statement of Purviance himself who says Reed was represented by James A.

Peden, Esq., Ms attorney, and by the action of Reed in relation to this matter, who, when this motion came on to be argued in the court below, objected to any judgment on the award, and assigned amongst other reasons this: “ because by the terms of the agreement attached to the award the same was opened, and another was to be'made, thereby sustaining this statement of Mr. Purviance, and recognizing and affirming the acts of James A.

Peden, Esq., as his attorney in the premises : and now, in this Court, he again recognizes and re-affirms it, by objecting to a reversal of the judgment rendered by the court below in this case, upon the same grounds. It is a familiar principle, that “ the acts of one having no authority will be made valid by the ratification of the person for whom he assumed to act.” Lent v. Padleford, 10 Mass. Reps., 230, 236. Odiorne v. Maxey, 18 Mass. Reps., 178, 182. Wood v. Carpenter, 4 Wendell’s Reps., 219. Baker v. Byrne, 2 Smedes & Marsh, 193.

A principal may recognize an authority, “ ex post facto,” and make the act his own. Haggles v. Washington County, 3 Miss. Reps., 496. 3d U. States Dig., 244. 2 Kent’s Comm., page 478.

By this agreement, the award was opened, and, therefore, there is now no award to be enforced, and this of itself is a fatal objection to so much of the motion as asks to have “ the award made a rule of court, and that judgment be entered thereon and execution issue,” and saves us the necessity of enquiring whether this would have been the proper mode of enforcing such an award, and of looking into the other objections against it which have been presented for our consideration.

There is one matter, however, in relation to this award, which we deem it proper for us to notice, which is, that, by the agreement to open it, the parties agreed “ that the arbitrators insert all matters which they have omitted, in the purview contained, and which they have adjudicated, but omitted to set forth.” This agreement, it is to be observed, is signed by the appellant, and if it were not valid as an agreement to open the award, for lack of authority in Peden to make it, still it would seem to be a sufficient acknowledgement by the appellant that matters • had been submitted to the arbitrators, which were not adjudicated by them, and that others were adjudicated, which they omitted to state in their award, and with such omissions before us acknowledged by one of the parties, we should hesitate much before we should make an order to enforce the award against the other : for that an award does not embrace all matters submitted to the arbitrator, is one of the very reasons assigned in the books for setting it aside.

Watson on Arbitration and Award, 159,8 Law Lib. Whether the affidavits referred to are properly a part of the record or not, is of no importance to this case, as our decision would have been the same, had they not been in it. We looked into them to ascertain if they really contained any legal and substantial proof of the alleged disaffirmance and denial of Peden’s authority by Wm. Reed, the appellee. Had they done so, we might have felt ourselves constrained to examine that question.

Finding, however, that they contain no such proof, and that the hearsay evidence on the subject is more than neutralized by the positive statement of the same witness, and what is of more importance, the authority of Mr. Peden having been fully recognised and affirmed by the appellee, and no agreement, such as the statute prescribes, to make the submission a rule of court, having been filed, we can perceive no error in the judgment of the court below.

If such an agreement had been filed, or if it had been clearly shown that an agreement to make the submission or award a rule of Hamilton Circuit Court had been appended to the bond of Mr. O’Bryan, the appellant, and that he was unable to file it from the fault of the appellee, or his refusal to permit him to do so, or at least without any fault on his own part, we are not prepared to say but that the motion ought (under such circumstances) to have been so far sustained, as to have permitted the rule to be entered, to stand until a new award should be made.

There seems to have been no-time limited in the agreement to open the award, within which the new one was to be made ; as no such agreement was filed, and no such proof was shown, it is unnecessary for us now to decide that question. For the reasons stated, the judgment is affirmed. Per curiam.