The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-06-18


So interpreting the law have critically
examined the twelve policies involved in
the twelve suits wc are now trying, and
No. 3,046, OF the Liverpool x London &
Globe Company, is framed according to
the broadest view OF the law of Scott vs..
Avery, and requires tho submission OF all
and every question that may arise 10 arbi-
traitors, and this rs condition precedent
10 paying anything at all. Whether tho
arbitration clauses should be hold utterly
void because OF thi3intlrmity or DO trimmed
to their lawful proportions, may be doubt
full. But give the company the benefit
OF the doubt because the law in such cases
does not favor entire extirpation, except
where there is some turpitudc in
volved in the illegal condition, which
doubtful II the policies OF tho German
American Company lease No. 3,Oi5), the
Union Insurance Company lease No.
3,05i), and the Fire Association OF Phila-
delphia lease No. 3,030) can be said 10
make the arbitration clauses conditions
precedent under the striclest cases which
have been ruled. Much depends on
the framework Of the covenant 10 nay
only such sum as the arbitrators shall fix,
and the most careful wording takes some
form OF expression in that direction. These
policies do not possibly, even by sufficient
reference 10 tho conditions do this, yet
perhaps by stretch OF Interpretation they
may do II. Still. however this be, the rule
is that the intention shall govern, II eX-
pressed only by implication fairly made,
and II is, | think, from the whole contract
to be gathered that the arbitration Is
rather condition precedent than a mere
collateral agreement 10 submit TO arbitra-
ton, revocablc rs such. and only 10 be ro-
versed by an action for damages. As
10 all the policies which are optional in
this clause by making the arbitration de-
pendent upon n demand Of one or the
other parties, and they aro all Of that
character, except three OF them, doubt
has occurred TO me whether that fact was
not wholly inconsistent with the notion OF
II condition precedent, and whether such
a condition can exist except in an absolute
form. How can a right be treated as a
precedent one which only arises upon
subsequent demand7 Yet all Is certain
which can be made certain, and this con.
dition upon a condition, so TO speak, may
answer its purpose when the demand Is
made TO make the arbitration as obligatory
rs Il is m the policies Of the Liberty ln-
suranco Company lease No. 3,0iil and OF
the Western Assurance Company lease
30i7) Osas the appraisement IS in the poll
Icy OF the Insurance Company OF North
America lease 3,0D), although the 1rbi-
lration clause is optional. like the others
above mentioned. And il is worth noting
here That this last policy IL dual in It's
terms. and by that duality illustrates the
force Of the rulings We are making in this
important ease. II provides IN is Article
for an appraisoment by three disinier-
cstod experts, II the parties cannot agree
las TO the amount OF loss or damage
whose duty II shall be TO appraise the
cash value at the time Of the fire OF the
property damaged or destroyed and fix the
loss or damage thereon In detail, rendering
an account thereof In writing. etc. APP
praisals aud estimates, so made and
signed by q majority OF the apprais-
ors, while conclusive ~ 10 amount Of
the loss or damage shall not determine the
legal liability OF the company hereun Ter. +"
II also in its Article provides like the
other policies for an arbitration Of differ
enccs" which have not been determined
and settled by the appraisers rs to the
amount of any loss or damage and the
award shall DO binding rs TO the amount
OF such loss or damage, but shall not dc.
eide the legal liability Of the company
under this policy. Why there are two
clauses do not know, for while some cases
can be iounl TO give the latter broader
scope than the former the cases by which
we are being guided reduce Il to the exact
proportions Of tho other and the two
amount to the same thing aud can, as We
understand the law, 20 no further than
the first has gone.
SO interpreted. these arbitration clauses
oon,rayene no public policy, and with tho
exceptions stated they. one and all, limit
the arbitration a. the function stated In the
appraiscmont clause above quoted. The
elasticity Of language would permit III,
companies 10 claim thatin asccrtaining III,
amount OF the loss or damage other pre-
liminary questions must be determined
necessarily, but under the appraisemen
clause what that means u made perfectly
clear. and any claim beyond tina
would 10 unlawful. And this 4
the cause of the trouble here
Tho plain,iiIsapprehcnded, or pretended &
apprchcnd that the companies woul,
claim all that the language Of the Londoi
x Liverpool 4 Globe Company called 70
In the way OF arbitration and that takin
advantage OF this elasticity they would as
10 have tho arbiirators do more than ~
praise the cash value Of the goods d,
nlroycd In detail. aud, therefore, they oil
icctod 10 any arbitration, except under
stipulation that would exclude any poss
biity OF their doing that thing. and b,
cause tho defendant company refused I
W limit their reference the plaintiff col
tend that there has bccna
I wAiygR
b Of the arbitration clauses or condition
: the policies. This IL a question OF fact, o
rather, u IL what We call a mixed qucstio
J of fact aud law. That IA 81 say. II "
: know with precision the facts and circun
. stances. u u an inference OF fact 10 l
! drawn from these circumstances and II
J IL unreasonable TO draw any other than q
= inference ono way the court may say
a aud not submit Il 10 the Jury, because
I, the Jury should infer contrary 10 q
/ certain import OF the facts u
p court would Get aside their We
= dict n contrary 10 the evidence. T.,
= crcising this power, N we often do hor
u ! do not hesitate 10 say that on the Who'll
y undi-puicd facts OF this case, which n
!. not In the least qualified or modified |
II any other fact that Is disputed, the ms
,. rance companies cannot rely ON these Q
10 biration clauses ~ defense. | do n
~ say they have waived them, for they ha
" not. Waiver h matter Of intention
most wholly, aud the defendants 40
=. from intending 10 waive these claus
n have insisted on them mos, strcnuously
AL / all timoa anil undpF ali ,irrumsfanr es