Coleman v. Wade

Effect of award. — Discharge of surety. A good award is a bar to a suit on the original cause of action; if it extend the time of payment beyond that fixed by the contract, a surety for the principal debtor is discharged.

Appeal from the general term of the Superior Court of- the city of New York, where a motion for a new trial had been denied, and a nonsuit, entered upon the trial, affirmed. This was an action of assumpsit, commenced in the supreme court, by William Coleman against James Wade and David H. Van Amburgh, as sureties for George Wade, on a lease of a mill and the appurtenances, in Orange county, for the term of one year from the 1st November 1843, at the rent of $650, payable quarterly; with a covenant on the part of the lessee to keep the mill in good order and repair. At the foot of the lease, the defendants signed a contract of guaranty, as follows: “In consideration *of the letting of theprem- [* 45 ises above mentioned, by William Coleman to George Wade, we hereby guaranty to said Coleman, the payment of the rent above expressed, by the said George Wade, in the manner, and at the time, above mentioned, and the faithful performance by said Wade, of all the agreements within contained, on his part to be kept and performed. New York, October 30th, 1843.” The cause was subsequently transferred to the superior court, where, on a trial before Sandeobd, J., after proof of the lease and guarantee, the occupation of the premises by the lessee, and the payment of the quarter’s rent ending 1st November 1844; it was shown, by the defendants, that on the 10th October 1844, the plaintiff and George Wade, the lessee, entered into mutual bonds, whereby they submitted to three persons therein named, as arbitrators, to award and determine the amount of rent due to the plaintiff on the 1st August 1844, and of and concerning all claims, demands and damages of the plaintiff against the said George Wade, by reason of any misconduct or neglect of the said lessee to the demised premises ; so as the said award be made in writing, ready for delivery to the parties, on or before the 25th October instant. Also, an award by the arbitrators named in the submission, dated the 25th October 1844, whereby they awarded that the said George Wade, the lessee, should, “on or before the 10th day of November then next,” pay to the plaintiff the sum of $266.90, in full of all rent to 1st August 1844, and of all damages to the time of submission. The plaintiff’s counsel objected to the admission in evidence of the submission and award, as a bar to the action; but the learned judge decided that they constituted a bar, and nonsuited the plaintiff; to which he took an exception. The court, at general term, denied a motion for a new trial, and affirmed the judgment of nonsuit; whereupon, the plaintiff took this appeal, which was prosecuted by his administrators, after his decease.