{ "id": 8499975, "name": "A. J. Lockett, Appellant, v. Clifford Thorne, Appellee", "name_abbreviation": "Lockett v. Thorne", "decision_date": "1921-10-04", "docket_number": "Gen. No. 26,143", "first_page": "621", "last_page": "629", "citations": [ { "type": "official", "cite": "221 Ill. App. 621" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "57 Conn. 105", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 512449 ], "opinion_index": 0, "case_paths": [ "/conn/57/0105-01" ] }, { "cite": "151 Ill. 444", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5469218 ], "opinion_index": 0, "case_paths": [ "/ill/151/0444-01" ] }, { "cite": "296 Ill. 240", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5057255 ], "weight": 2, "pin_cites": [ { "page": "244" }, { "page": "p. 245" } ], "opinion_index": 0, "case_paths": [ "/ill/296/0240-01" ] }, { "cite": "216 Ill. 185", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3359374 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill/216/0185-01" ] }, { "cite": "76 Ill. 157", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314601 ], "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/ill/76/0157-01" ] } ], "analysis": { "cardinality": 663, "char_count": 16217, "ocr_confidence": 0.473, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20508145455584476 }, "sha256": "65399c714487654aba15a2d72ec49461a9eb88e726068b532c64de4cec46f2c5", "simhash": "1:02cd68e800d2fd8d", "word_count": 2730 }, "last_updated": "2023-07-14T16:13:09.801721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Barnes and Morrell,, JJ., concur." ], "parties": [ "A. J. Lockett, Appellant, v. Clifford Thorne, Appellee." ], "opinions": [ { "text": "Mr. Presiding Justice Gridley\ndelivered the opinion of the court.\nOn October 24, 1919, plaintiff commenced an action in replevin in the municipal court of Chicago against defendant. In his affidavit he stated that he was lawfully entitled to the possession of a certified check for $500, dated'September 24, 1919, drawn on the Dixon National Bank of Dixon, Illinois, signed by plaintiff and payable to the order of Clifford Thorne, trustee; that on September 25, 1919, plaintiff deposited the check with defendant and that the latter now wrongfully detains the same. After the bailiff had returned the writ unexecuted, plaintiff changed his action to trover and in his statement of claim averred, in' substance, that said check was deposited with defendant subject to the terms and conditions of a certain agreement (entered into by and between plaintiff and the Sterling Oil and Refining Company, a corporation, hereinafter referred to as the Oil Company) of submission of certain differences to arbitration; that on October 20, 1919, before the arbitration hearing was had, plaintiff, \u201cfor just and lawful reasons,\u201d notified defendant, the Oil Company, and the three arbitrators, Fred W. Lehman, Jr., E. E. Grant and John H. Passmore, that he (plaintiff) would not submit said differences to arbitration and would not abide by any award made by the arbitrators; that defendant was not a party to said arbitration agreement and had no financial interest in said check or the proceeds thereof, \u201che being a mere stakeholder\u201d; that on the same day he demanded of defendant the return of said certified check so deposited, but defendant refused to return the same or the proceeds thereof to plaintiff, and, \u201cin violation of Ms duty as trustee,\u201d converted the check to his own use by depositing the same in a Chicago bank, and the same was in due course paid by the Dixon National Bank; and that by reason of defendant\u2019s unlawful conversion of the check plaintiff is entitled to judgment against him for the sum of $500 and interest. Attached to the statement of claim and made a part thereof is a copy of said agreement. The defendant in Ms affidavit of merits stated that he was not guilty of the wrongs and grievances complained of, and that he had not converted the check or proceeds to Ms own use. The case was tried before the court without a jury resulting in the court finding the defendant not guilty and entering judgment against the plaintiff for costs, wMch judgment plaintiff by tMs appeal seeks to reverse.\nThe said agreement is dated September 19, 1919,' and is signed by the Oil Company \u201cby Geo. H. Fleish-man,\u201d and by the plaintiff, \u201cdoing business as Central Oil Marketing Co.\u201d It recites that, as a result of \u201ccertain business transactions heretofore had\u201d between plaintiff and the Oil Company, a Kansas corporation with its chief place of business in Wichita, Kansas, \u201ccertain differences have arisen\u201d between the parties, which differences \u201cthe parties desire to dispose of and determine by arbitration.\u201d And the parties agreed therein that the disputes and differences \u201cwhich now exist\u201d between them \u201cshall be and the same are hereby referred to the arbitration and determination of three arbitrators; \u2019 \u2019 that Fred W. Lehman, Jr., of Kansas City, Missouri, shall be the arbitrator named by the Oil Company, that E. E. Grant, of Chicago, shall be the arbitrator named by A. J. Lockett, and that Kobert L. Welsh, of New York City shall name the third person who is to act as arbitrator; that in the event any of the three arbitrators shall fail, refuse or give notice that they are unable to act within 20 days after receipt of notice of or request to act, \u201cthen Clifford Thome, of * * * Chicago, shall name a person to act in lieu of the arbitrator, who so fails, refuses or is unable to perform;\u201d that the members shall meet on October 20, 1919, at 2 o\u2019clock p. m., at Boom 1414 Lytton Building, Chicago, and such arbitrators shall then proceed to hear such testimony, and examine such exhibits and evidence, as shall be presented by the parties hereto, and the attorneys for the respective parties shall examine and cross-examine the witnesses and make such oral arguments as may be deemed proper and necessary, and the arbitrators shall make their award and finding in a report in writing, signed by at least a majority of said arbitrators, and \u201cthe said award shall then be legal and enforcible by any court of competent jurisdiction in the United States of America\u201d; that the arbitrators shall also fix the proper costs to be assessed in the proceeding; that \u201cthe award so made shall be final and shall not be appealable by either of the parties hereto,\u201d and that upon payment thereof it shall be a full and final adjustment and settlement of all claims and demands held by either of the parties against the other; and that the proper costs of the proceeding, not including attorneys\u2019 fees, shall be divided equally between the parties. The agreement contained the following paragraph:\n\u201cEach of the parties hereto agree to deposit, on or before September 25, 1919, the sum of $500, either in cash or by certified check payable to Clifford Thorne, * * * to guarantee the prompt and faithful performance of the provisions of this agreement, and in the event that either of the parties shall fail, without a proper and lawful justification, to appear on October 20, 1919, at the place aforesaid, ready to proceed with said arbitration, or if an award shall be made against either of the parties hereto and such party * * * shall fail to fully pay and compensate the amount of the award allowed against said party, in the manner and within the 60 days above specified, then said stun of $500 shall he forfeited as liquidated damages for failure to appear or to pay said award allowed as aforesaid, hut said sum of $500 shall not he deducted or set off as part payment of the award allowed in the arbitration. If either or both of the parties hereto perform all the terms of this agreement in the manner herein specified, the sum of $500 deposited with Clifford Thome as aforesaid shall he returned to the party performing.\u201d\nIt appears from the evidence introduced upon the trial that within 5 days following the signing of the agreement, each of the parties thereto deposited certified checks with the defendant, each cheek being for $500; that defendant is an attorney-at-law having his office at Eoom 1414 Lytton Building, Chicago; that prior to the date of said agreement, George H. Fleish-man, of the Oil Company, and plaintiff in writing requested defendant to act as arbitrator in settling the differences which had arisen between the Oil Company and plaintiff but that defendant refused to act as arbitrator because of certain professional relations which he had had with the Oil Company; that on September 19, 1919, both Fleishman and plaintiff called at defendant\u2019s office and on that day said agreement was drafted and executed; that Robert L. Welsh, who by the agreement was to appoint the third arbitrator, appointed one E. E. Shock, of St. Louis, Missouri, to act in that capacity; that subsequently plaintiff objected to said Shock acting and thereupon Shock refused to act; that shortly before the hearing defendant appointed John H. Passmore, of Chicago, who accepted the appointment; that neither party to the agreement made any specific objections to said Pass-more acting as the third arbitrator; that at the time set for the hearing, October 20, 1919, a,t 2 p. m. and at the place specified, plaintiff and his attorney, de-fendaut, Fleishman and one Brooks, attorney for the Oil Company, and all three of the arbitrators were present; that prior to the taking of any testimony plaintiff served written notice- on each of the three arbitrators that he \u201chad decided not to submit to arbitration\u201d the controversy existing between himself and the Oil Company, \u201cas provided in the ag\u2019reement * * * wherein each of yon is named as an arbitrator,\u201d that he desired said notice to be considered as a \u201ccomplete revocation of any authority\u201d that he might have granted them to arbitrate the controversy, and that he would not abide by any award made by them ; that at the same time plaintiff served written notice upon defendant to the same effect and therein demanded that defendant return to him said certified check of $500; that said arbitrators decided to proceed with the hearing and defendant refused to return to plaintiff said check; that testimony was heard by them and that before the conclusion thereof plaintiff and his attorney left the room; that on the same day defendant deposited both checks for $500 in a Chicago bank to his credit in a separate account, known as \u201cClifford Thome, Special\u201d; that on the same day at the conclusion of the hearing, the arbitrators made an award in writing, signed by all three of said arbitrators, wherein they found that plaintiff was justly indebted to the Oil Company in the sum of $4,629.59, and adjudged that the Oil Company recover of plain-tiff said sum, and that the costs of the proceedings amounted to $150, not including attorneys\u2019 fees, and that plaintiff pay one-half of said costs and the Oil Company the other half; that on the same day, and after the award had been made, defendant, on the demand of the Oil Company, delivered to it a check for $500 drawn on said special account, payable to the order of the Oil Company, which check was subsequently paid.; that on the same day the Oil Company notified defendant that it considered and declared that the other $500 in said separate account, being the proceeds of plaintiff\u2019s said check, had been forfeited to it under said contract, and demanded said sum from defendant, but it still remains in said separate account to defendant\u2019s credit, as defendant testified, \u201cin his representative capacity for the proper owner.\u201d\nWe think it clear from the evidence that plaintiff failed, without any \u201cproper and lawful justification,\u201d to appear on the day named in the agreement \u201cready to proceed with said arbitration.\u201d His only reasons for his actions, as he testified, were \u201cbecause I did not think I would get a fair deal, and the other reason was that I did not think the original instrument as drawn up was legal and binding.\u201d He introduced no evidence even tending to show that there was anything irregular or improper in the appointment of any of the arbitrators or in their subsequent actions. And we think that\u00bbby virtue of the agreement his failure to so appear justified the Oil Company in forfeiting the proceeds of his $500 check as liquidated damages (Gobble v. Linder, 76 Ill. 157, 159; Pinkney v. Weaver, 216 Ill. 185, 196), and that under the facts and circumstances in evidence, defendant was fully warranted, as stakeholder, in refusing to return to plaintiff the proceeds of said check, and that he was not guilty of any conversion thereof as against plaintiff.\nCounsel for plaintiff urges that the agreement for arbitration was revocable at any time before the award was made at the will of either party. Under section , 3 of \u201cAn Act to revise the law in relation to arbitra-tions and awards,\u201d in force July 1, 1917, and as amended in 1919 [Hurd\u2019s Kev. St. ch. 10, Callaghan\u2019s 1920 Stat. \u00b6 474(3)], we do not think it was. In White Eagle Laundry Co. v. Slawek, 296 Ill. 240, 244, it is said:\n\u201cAt common law the rule was well established that either party might revoke the submission at any time .before the award was made, thus rendering the submission wholly ineffectual and taking from the arbitrator all power to make a binding award. * * * Section 3 of the Arbitration Act- [Callaghan\u2019s 1920 Stat. \u00b6[ 474(3)] provides that a submission to arbitration shall, unless a contrary intention is expressed therein, be irrevocable. The legislature has the right to enact such a provision unless it is prohibited by the constitution from so doing. * * * The statute, in making the agreement irrevocable, confers no new power and takes away no inalienable right. It simply recognizes the agreement of the parties and enforces it. * * * Tim effect of making the agreement irrevocable was merely to provide for the specific enforcement of the contract and it violated no constitutional rights.\u201d\nWhile it has been held that an agreement in an executory contract to submit any controversy which may arise under it to arbitration is an effort to divest the courts of their jurisdiction and is invalid because contrary to public policy, still this principle applies only where there is a general agreement to submit all controversies to arbitration and does not apply to cases where a controversy has arisen and an agreement is made to submit the particular controversy to arbitration. (White Eagle Laundry Co. v. Slawek, supra, p. 245.) In the instant case, the agreement was to submit to arbitration certain differences which had arisen between the parties.\nAnd we do not think there is any merit in counsel\u2019s point that it does not sufficiently appear that Fleish-man was authorized by the Oil Company to sign the arbitration agreement in its behalf. It was first signed in the name of the Oil Company by Fleishman and below his signature appears that of plaintiff. Furthermore, both parties thereafter ratified the agreement by sending checks to defendant for $500 each in accordance with its terms, and the Oil Company sent Fleishman and its attorney, Brooks, from Wichita, Kansas, to Chicago, to attend the hearing before the arbitrators. (10 Cyc. 1076; Louisville, N. A. & C. Ry. Co. v. Carson, 151 Ill. 444; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105.)\nFor the reasons indicted the judgment of the municipal court is affirmed.\n\u2022 Affirmed.\nBarnes and Morrell,, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Gridley" } ], "attorneys": [ "John A. Bussian, for appellant.", "Sinden, Hassell & Osusky and Henry C. Warner, for appellee." ], "corrections": "", "head_matter": "A. J. Lockett, Appellant, v. Clifford Thorne, Appellee.\nGen. No. 26,143.\n1. Damages \u2014 deposit to secure agreement to arbitrate as liquidated damages. Where certified checks for $500 were deposited with defendant by both parties to an arbitration agreement which provided for submission of a certain controversy to arbitrators at a certain time and place and that \u201cin the event that either of the parties shall fail, without a proper and lawful justification, to appear\u201d at the time and place appointed, ready to proceed with the arbitration, the said sum of $500 shall be forfeited as liquidated damages, plaintiff, who appeared at such time and place and refused to submit the question to arbitration or to carry out the award made against him by the arbitrators, his only excuse being that he did not think he would get a fair deal and did not think the original instrument as drawn up was legal and binding, was not entitled to recover from defendant the amount so deposited.\n2. Aebitration and award \u2014 when agreement\u25a0 to submit to arbitration not revocable. Under section 3 of \"An act to revise the law in relation to arbitrations and awards,\u201d in force July 1, 1917, as amended in 1919 [Hurd\u2019s Rev. St., ch. 10, Callaghan\u2019s 1920 Stat. \u00b6 474(3)], providing that \u201ca submission to arbitration shall, unless a contrary intention is expressed therein, be irrevocable,\u201d an agreement to submit a controversy to arbitration was not revocable at any time before the award was made at the will of either party.\n3. Arbitration and award- \u2014 when agreement to submit to arbitration not invalid. An agreement to submit to arbitration a particular controversy which has arisen is not invalid as an effort to divest the courts of their jurisdiction.\n4. Corporations \u2014 authority of agent to sign arbitration agreement. Where an arbitration agreement was first signed in the name of a corporation by a certain person and both parties thereafter ratified the agreement by sending cheeks ,to the stockholder and the corporation sent the person signing for it to attend the hearing as its attorney, it sufficiently appeared that he was authorized to sign the agreement for the corporation.\nAppeal from the Municipal Court of Chicago; the Hon. C. F. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.\nAffirmed.\nOpinion filed October 4, 1921.\nRehearing denied October 17, 1921.\nJohn A. Bussian, for appellant.\nSinden, Hassell & Osusky and Henry C. Warner, for appellee." }, "file_name": "0621-01", "first_page_order": 677, "last_page_order": 685 }