Southwestern Reporter 1893
FAGGARD v. WILLIAMSON. (Court of Civil Appeals of Texas. Oct. 18, 1893.)
Arbitration—Oral Agreement—Pendingo Suit. District court rule No. 47, providing that no agreement between attorneys or parties touching any suit pending will be enforced unless in writing and filed as part of the record, does not forbid an oral agreement for arbitration of matters in controversy in a pending suit.
Appeal from Bosque county court; W. B. Thompson, Judge.
Action by J. W. Williamson against J. W. Faggard for damages for breach of contract Judgment for plaintiff. Defendant appeals. Reversed.
Lockett & Kimball, for appellant, S. H. Lumpkin, for appellee.
HEAD, J. The following statement of the nature and result of the suit taken from appellant's brief we have found to be full and correct, viz.: "This suit was brought by Williamson as plaintiff against Faggard as defendant to recover damages for an alleged breach of a verbal contract entered into by the parties for the making of a crop on defendant's farm, the terms of which were, in substance, that defendant should furnish the land, and a dwelling house for plaintiff and his family, and all the seed, tools, team, and feed, and the labor of himself and nephew, and that plaintiff should move upon the farm and furnish the labor of himself and son, and the assistance of his wife, when necessary. Plaintiff was to have one-third and defendant two-thirds of the crop made, which was to be gathered jointly, except that each party was to gather his own share of the cotton crop. The foregoing comprises the contract as set out in plaintiff's petition, and so far is supported by the testimony of both parties. But on the trial of the cause it was developed that the contract embraced, besides the stipulations in regard to making a crop, an agreement for the raising of money on defendant's land, which was the original object of the contract, and according to the terms of which defendant was to convey the land to plaintiff, who was to endeavor to obtain a loan on it, and was then to reconvey it to defendant. Defendant also claimed that plaintiff agreed to furnish a horse and ox, and the labor of all his children, when needed, in the crop. Plaintiff alleged that defendant withdrew his teams, and so forced him to abandon the contract and quit the farm after he had done several months' work. Defendant testified that plaintiff, after being put in possession of the farm, refused to reconvey the land as he had agreed to do, and that this constituted the original breach of the contract. After demurrers, general and special, on both sides, had been disposed of, a trial was had before a Jury, who rendered a verdict for plaintiff for $260.28, and judgment was entered accordingly."
We are of opinion the court below erred in sustaining appellee's exception to that part of appellant's answer pleading an arbitration and award as to the matters in controversy since the institution of the suit. It seems the court held the agreement for the arbitration to be invalid under rule 47 for the government of the district courts, because not in writing. This rule reads: "No agreement between attorneys or parties touching any suit pending will be enforced, unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record." In Wells v. Lane, 15 Wend. 99, a similar rule was held not to prohibit an oral agreement to arbitrate a pending suit. We believe the uniform construction placed upon this rule by the profession has been that it applies to proceedings in the conduct of the case in court, and does not prohibit oral agreements for the settlement of the matters in controversy outside of the suit. The construction contended for by appellee would prohibit even evidence of payment unless a written receipt be taken and filed in compliance with the rule. The tendency of our supreme court has been to construe this rule to be directory, rather than mandatory. Williams v. Huling, 43 Tex. 113; Capt v. Stubbs. 68 Tex. 225, 4 S. W. Rep. 407; Jenkins v. Adams, 71 Tex. 1, 8 S. W. Rep. 003; Kohn v. Washer, 69 Tex. 67, 6 S. W. Rep. 551.
That a common-law arbitration is binding in this state does not seem to be denied. Myers v. Easterwood, GO Tex. 107. In fact, our statute expressly provides that "nothing here-in shall be construed as affecting the existing right of parties to arbitrate their différences in such other mode as they may select. 1 Snyles' Civil St. art. 56. Neither can it be questioned but that this right extends to pending suits. Myers v. Easterwood, supra. That an oral submission to arbitration, when not in conflict with statute of frauds, is binding at common law cannot be controverted. Morse, Arb. 50; 1 Amer. & Eng. Ene.
Law, 055. That part of the contract by which appellee agreed to convey to appellant the land conveyed to him for the purpose of effecting a loan upon it, not having been pleaded by either of the parties, was
correctly ignored by the court. The other assignments relate to errors that will probably not occur upon another trial, and will therefore not be considered. The judgment of the court below Is reversed, and the cause remanded.