The decree was based upon the award, and the objection is that the award should have been set aside because the arbitrators exceeded the authority conferred upon them by the submission.
It was not urged in the court below, nor is it here, that there was any impropriety in submitting the controversy to arbitration, and the only point we are to consider in this connection is whether the award is within the terms of the submission.
The bill was filed three years or more after the death of Ives, and prayed for a settlement of all matters growing out of the business during the existence of the firm, and for profits alleged to have been realized by defendant by reason of his management since the dissolution, and the cause, when at issue, involved a complete and final adjustment of the whole subject.
The stipulation and the order appointing the arbitrators should be read in the light of the issues thus made up.
It is not controverted that the arbitrators are a special tribunal for the determination of the matters submitted to them, and that their action in excess of authority so conferred would be void and should be set aside.
Was the authority exceeded in this instance ? The plaintiff in error insists that the sole power conferred was to state an account between the partners, and determine what amount, if any, should be paid by one to the other, and urges that nothing was said about the debts of the firm, or of either party, to third parties. This point, in other words, implies that the only final conclusion to be reached by the award was how much should be paid by complainant to defendant, or by defendant to complainant.
We think this view too narrow. The stipulation, which was incorporated in the order of submission, expressly dec’ared that the arbitrators should “ take and state an account of all the co-partnership dealings and transactions between the said partners, and of all moneys received and paid out by either of them on account of the partnership property of said firm, and fix and determine what sum, if any, shall be paid by said Matthew Ashelby to said Bessie W. Ives, executrix, or by said Bessie W. Ives to said. Matthew Ashelby, * * * and the award shall be accepted as a true statement of the account between the parties, and shall be entered as the finding of the court as to said accounts, and to become the basis of the decree * * * for the disposition of all the property of the firm.”
The first inquiry, and, indeed, the whole inquiry, is as to the accounts between the parties. To this end it was proper to ascertain whether Ives had failed to pay the notes held by Adams and Bussell, which he had assumed as a part of the consideration when he entered the firm. If he had not so paid, he or his estate would be liable to do so, and it is immaterial whether the money he paid directly by the complainant to the holders of the notes, or to the defendant, and by him paid over. So, also, it was important to know how much the firm was indebted, either to third parties or to the individual members of the firm. Manifestly there could be no statement of account without this, nor would it be proper to order any money paid by one of the parties to the other until the claims of the firm creditors were discharged. It was ascertained that the firm owed the bank §6,058.20, one-half of which should be paid by each party, and that the firm owed the defendant §5,243.80 after turning over to him all the personal property of the firm and charging him one-half of its value, of which last sum one-half should be paid by each party. It was therefore proper to require the complainant to pay one-half of the debt to the bank, and to apply what was due from her to defendant upon his half of the bank debt, leaving him to meet the balance of §408.20, which would then be due the hank.
The same result was reached by this process that would have been if the defendant had first paid the firm debts and then received the amount for which the estate was liable from complainant. The defendant, as surviving partner, was bound to the firm creditor, and had the right to appropriate the firm assets upon such indebtedness, and could call on the estate for any balance due him on this account or on account of anything due him from the firm.
There is no excess of authority in this award. It is within both the letter and the spirit of the submission. It is not urged that the decree is erroneous if the award is good and it is unnecessary to further consider this branch of the case.
The remaining point is as to the action of the court in refusing to allow complainant to dismiss her bill after the motion to set aside the award had been overruled.
The stipulation of the parties expressly provided that the award should be the basis of a decree in said cause by said court and should be entered as the finding of the court as to said accounts. This was in effect the same as an agreement to enter a decree upon certain facts set out or in a particular form.
In Coultas v. Green, 43 Ill. 277, the parties had stipulated that a certain decree should be entered in the causo and afterward the complainant was by the Circuit Court permitted, in violation of the stipulation, to dismiss his bill. The Supreme Court held this to be erroneous and said that by making the agreement a part of the record the complainant bad yielded all power over the case and that it was just and equitable that lie should comply with his agreement, citing Toupin v. Gargnier, 12 Ill. 79, where, in an action at law, the parties were compelled to abide by a verbal agreement to dismiss the suit. This is decisive and settles the point against plaintiff in error.
The authorities cited in support of the general right to dismiss are not applicable when by a positive agreement the right has been waived.
Ho complaint is made as to the justice of the award on the proof nor are any circumstances urged which would render it inequitable to require the complainant to abide by the agreement. Ho other objections being presented the decree will be affirmed.
Decree affirmed.