Ober & Sons Co. v. Thomason Grocery Co.

Substantially but one question is presented by the record in this case. It is, did the agreement entered into bind the parties at a subsequent term of the court? Clearly if it did not, the court committed an error-in holding plaintiff bound by it and refusing its demand for a jury trial. We find that one of the terms of the agreement was, that the presiding judge was to decide the case at the term of court at which the agreement and submission was made. With this limitation expressed as to the time when the case was to be decided, it cannot be inferred that it was the intention of the parties, that the agreement should be binding if the decision was.not made within the time limited. In other words, we cannot by implication, which could only be indulged in the absence of such a limitation, infer that it was the intention of the parties that the submission of the case to the judge for decision was to extend to a period beyond the term of the court, and thus confer upon him the right to decide it at some other term beyond the period fixed by the agreement. It may be said *221that the plaintiff waived this term of the agreement and that it Avas at his instance that a decision Avas not rendered within the time fixed. It may he, and doubtless it is true, that a postponement of the decision was at the instance of plaintiff’s counsel'and for his convenience. But the agreement under Avhich the postponement was had also- contains a term fixing the time when, though not definite as to day, and the place where, the judge was to render his decision. It was to be rendered in vacation at Gadsden. It is also true, that plaintiff’s counsel did not go to Gadsden or make any other effort looking to a decision of the case. And for that matter, neither did claimant’s counsel. Nor did the judge decide the case, as he had the l’ight to do. There being no execution of the agreement Avithin the time limited by it, Ave are constrained to hold that it became functus, and that the case stood for trial at the next term of the court, and that the court should have proceeded regularly with the trial of it as though no agreement had ever existed.

Reversed and remanded.