Travelers Ins. Co. v. Pierce Engine Co. 141 Wis. 103. weighing of evidence, and deciding whether items should or should not be included. People ex rel. Ramsdale v. Orleans. Co. 16 Misc. 213, 38 N. Y. Supp. 890; People ex rel. Hamilton v. Jefferson, 35 App. Div. 239, 54 N. Y. Supp. 782; Peo-ple ex rel. Brown v. Board, 52 N. Y. 224; People ex rel. Myers v. Barnes, 114 N. Y. 317, 20 N. E. 609, 21 N. E. 739; Territory ex rel. Donzelmann v. Grant, 3 Wyo. 241, 21 Pac.. 693; In re Clark, 5 Fed. Cas. 853. Here it is obviously used in a sense to enable the auditor to ascertain the final amount which the defendant owed, which indicates the broader meaning. However, this agreement was made in the light of various surrounding circumstances, such as the suit already commenced, negotiations between the parties wherein the plaintiff's contention as to the proper construction of the application and policy had been advanced, and many other facts proper to be considered in ascertaining the meaning of the parties. From these as well the trial court reached a conclusion in favor of such broader construction. As that conclusion, in some measure at least, depends upon somewhat confused facts and upon the inferences of intention to be drawn therefrom, it is entitled to the weight of the ordinary finding of fact. Vilas v. Bundy, 106 Wis. 168, 81 N. W. 812; Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161, 170. 87 N. W. 1085, 89 N. W. 180. We do not think that conclusion is antagonized by any necessary construction of the words of the agreement, and we do not find any such clear preponderance of evidence as would justify us in disturbing a finding of fact. It must therefore stand as the basis upon which the rights of the parties must be determined. The scope of the submission to arbitration being as we have stated, the province and jurisdiction of the arbitrator was as broad as that of a court and his conclusion within that jurisdiction as final upon the parties. His duty was, as counsel for defendant contends, to make a proper audit; but such proper audit was merely to ascertain the facts and decide on Travelers Ins. Co. v. Pierce Engine Co. 141 Wis. 103. the rights of the parties honestly and by application of his best judgment. It was not necessarily to make a correct audit or to decide unerringly, according to the view of the court in which his determination is sought to be enforced. Chandos v. Am. F. Ins. Co. 84 Wis. 184, 54 N. W. 390; McAlpine v. Trustees, 101 Wis. 468, 78 N. W. 173; John Pritzlaff H. Co. v. Berghoefer, 103 Wis. 359, 364, 79 N. W. 564; Coorsen v. Ziehl, 103 Wis. 381, 384, 79 N. W. 562; Consolidated W. P. Co. v. Nash, 109 Wis. 490, 85 N. W. 485; Eau Claire v. Eau Claire W. Co. 137 Wis. 517, 119 N. W. 555. There is no allegation in the answer and no proof offered that the arbitrator was guilty of any fraudulent or arbitrary action or fell into mistake in any other sense than that it is claimed he decided erroneously as to certain contentions urged by defendant. But such a submission to arbitration as we have determined this to be confers just that jurisdiction to decide erroneously, if honestly, and to bind the parties to such determination by force of their agreement to be so bound. There is therefore nothing shown to warrant excusing defendant from performing its plain agreement to pay the amount found due by the auditor. Various somewhat technical contentions are presented by the appellant, most of which disappear in the light of our conclusion as to the scope of the submission. Some of them are perhaps independent of it. One of these is that the dismissal of the first action was a condition precedent to the efficacy of the arbitration agreement, and that no proof of such dismissal has been offered. This contention is somewhat inconsistent with what is said elsewhere in appellant's brief, to the effect that an agreement to submit to arbitration the matters involved in a pending action ipso facto dismisses that action. This rule seems to be well established and of itself defeats the contention. Muckey v. Pierce, 3 Wis. 307; Jones v. Thomas, 120 Wis. 274, 278, 97 N. W. 950. But it must also be noted that the contract itself, on its face at least, amounts to an ad Travelers Ins. Co. v. Pierce Engine Co. 141 Wis. 103. mission of the dismissal of the action. It recites that the agreement is made in consideration of such dismissal, not of an agreement to dismiss. Further it is argued that the arbitration agreement is unilateral and without consideration. Apart from the executed consideration of the dismissal of the pending suit, we have no doubt that the plaintiff, after having availed itself of the agreement by sending its auditor to examine defendant's books, had accepted the same and became bound to such acts. on its part as would give it full effect, and that if the auditor's report had been a less sum, or even no sum at all, it would have been final upon the plaintiff. Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459; W. G. Taylor Co. v. Bannerman, 120 Wis. 189, 192, 97 N. W. 918. A complaint that no notice was required by the agreement or was in fact given of any hearing by the arbitrator is met by the fact that the defendant was given full opportunity to be present at all material times and availed itself of such opportunity. It cannot complain that the other party failed of notice. The fact that the arbitrator was an employee of plaintiff is not a legitimate objection, since both parties knew the fact and had a right to waive objection thereto and accept such person as arbitrator. Fox v. Hazelton, 10 Pick. 275; Strong v. Strong, 9 Cush. 560, 573. We find no other error assigned which seems worthy of mention or discussion, or which would justify reversal. By the Court.-Judgment affirmed. Burton v. Douglass, 141 Wis. 110. BURTON and others, Appellants, vs. DOUGLASS and others, Respondents. November 15-December 7, 1909. Contracts: Construction: Agreement not to engage in business in city "or vicinity:" Ambiguity: Parol evidence. 1. Practical construction placed by the parties in interest upon doubtful or ambiguous terms in a contract will exercise a great and sometimes a controlling influence in determining the construction to be placed thereon by the courts. 2. An agreement not to engage in the flour and feed business at a certain city "or vicinity" is held not to have precluded engaging in such business in villages about six and one-half miles from said city, both parties having practically so construed the contract-one by engaging in the business at such villages within a few months after the agreement was made, and the other by not objecting thereto until several years later, although prompt objection had been made when it was thought the agreement was about to be violated with respect to the city. 3. Parol evidence to show that at the time of executing a contract the parties substantially agreed upon the definition of an ambiguous term therein does not alter or add to the written contract, but simply goes to show what they meant when they used that term. APPEAL from a judgment of the circuit court for Walworth county: E. B. BELDEN, Circuit Judge. Affirmed. For many years prior to October 5, 1903, the firm of Douglass & Dunn was engaged in the business of selling flour and feed at the city of Lake Geneva. For some months prior to said date the firm of Burton & Denison was engaged in a like business, the firm consisting of W. E. Burton and E. D. Denison. On said date the firm of Douglass & Dunn (consisting of the defendants Horace G. Douglass and Edward F. Dunn) agreed to sell and convey to Lucretia D. Burton certain real estate owned by them in the city of Lake Geneva as well as their stock in trade and the good will of their business. The stock in trade was to be paid for at its inventory value, based Burton v. Douglass, 141 Wis. 110. On on cost price. For the remainder of the property the vendee agreed to pay $10,000, of which amount $2,000 was presently paid and the balance was to be paid on November 5th. the last-named date Lucretia D. Burton, John E. Burton, and Ebenezer Davidson formed a copartnership with the members of the firm of Burton & Denison for the purpose of continuing the flour and feed and other business carried on by said firm and also for the purpose of carrying on the business purchased by Lucretia D. Burton from the firm of Douglass & Dunn. A portion of the property purchased by Lucretia D. Burton from Douglass & Dunn was purchased by the new firm and a portion of it was leased to it. The trial court, in deciding the case, held that Lucretia D. Burton made the purchase from Douglass & Dunn as a mere intermediary and in behalf of the firm of Burton & Denison. On the day the original contract between Douglass & Dunn was made (October 5th), a separate contract was entered into between the firms of Douglass & Dunn and Burton & Denison, as follows: "Whereas, Douglass & Dunn have this day contracted to sell to Lucretia D. Burton their flour and feed business, together with the real estate upon which the improvements used to operate such business are situate; and, whereas, Burton & Denison, now in similar business, expect to repurchase such business of said Lucretia D. Burton: Now, therefore, it is mutually agreed by and between Douglass & Dunn and each of them and Burton & Denison and each of them, that in case the above-mentioned contract shall be carried out and such sale and purchase made, for value received, each in consideration of the promise of the other, that Douglass & Dunn or either of them, for a term of ten years at Lake Geneva or vicinity, shall not enter into or engage in the flour and feed business without first making an attempt and in good faith offering a reasonable price to purchase the flour and feed business of Burton & Denison; and Burton & Denison agree for a term of ten years that they or either of them will not dispose of the flour and feed business of said last-mentioned firm or of either party to any third party without first making an offer in good faith and for a reasonable price of said business |