Emery v. Hitchcock

By the Court, Nelson, J.

From an examination of the terms of the instrument in this case regarding the subject matter of it, and the various provisions contained in it, I am satisfied the intent of the parties to be gathered from the whole was, to have it operate as to the interest of Emery in the lease, and in the partnership funds as a release or assignment in prcesenti, and that such is its effect, The consideration is to be paid within a fixed time from the date, not from the date of any future release; and the defendant Hitchcock is expressly authorized to settle and collect the outstanding debts, for his own benefit, forthwith. Arbitrators are nomi *159 nated, whose duty it is to settle and award the amount due either party, according to the stipulations in the indenture; and the amount thus awarded is to be paid absolutely at the expiration of eighteen months. Nothing further is to be done by Hitchcock but to pay to Emery the balance, if a’.y be found against him by the arbitrators. I have no doubt that under this agreement Hitchcock would be entitled to possess and enjoy the whole of the partnership estate, in defiance of Emery.

The award is sufficiently certain, and is conclusive upon the defendants. The arbitrators were to adjust the accounts of the parties according to the terms of the submission, and strike the balance. The balance they have struck, and unless we are at liberty to overhaul their judgment upon the matters submitted, we are bound to assume it has been correctly done. This is the doctrine of all the cases in this court. 10 Johns. R. 143. 2 id. 62. 9 id. 38. The principle is, that where there are no legal objections appearing on the face of the award, it is final, and nothing dehors can be pleaded or given in evidence against it, except misconduct or corruption in the arbitrators. The revised statutes, 2 R. S. 542, § 10, 11, have relaxed this rule in some respects, but not so as to affect this case. The cases cited from 7 East, 81, 8 id. 13, have no application to the question here. There, by the terms of the submission, the arbitrators were to determine and award upon several distinct matters, and it appeared upon the face of the award that they had omitted some of them. They were bound to adjudicate upon each, and this should ’appear by the award, otherwise the authority of the submission would be disregarded. Not so here. The ascertainment of the balance due to one or the other was all that the terms of the submission required. That has been distinctly passed upon.

The suit, I think, was properly brought in the names of both plaintiffs. The instrument was inter partes, and, besides, the parties were, by the terms of it, bound mutually, each to the other, for the faithful performance of all the covenants and agreements contained in it. There is no doubt that an action on a contract, whether by parol or under seal, must be brought in the name of the party in whom the legal interest in *160 sucKcontract is vested ; and that, when the legal interest and cause of action of the covenants is several, each may sue separately for his particular demand, although the words of the covenant or agreement are joint and not several. 1 Chitty’s Pl. 3, 6, and cases there cited. But the legal interest of a party in the contract or covenant, and the benefit to be derived from or under it, are very different things, and must not be confounded. This distinction is more clearly stated in Anderson v. Martindale, 1 East, 500, than in any other case or authority I have met with. There the declaration stated the covenant to be to and with J. A. in his lifetime, his executors, &c. and also to and with E. W. and her assigns, that one of the defendants should pay to the said J. A., his executors, &c. £60 per annum during the life of E. W. The suit was brought in the name of the administrator of J. A., and there was a general demurrer to the declaration and joinder. The ground taken in support of the demurrer was, that the covenant was made jointly with the two covenantees for one and the same thing, and that the cause of action survived to E. W. In support of the declaration, it was contended that the sole benefit and interest belonged to the intestate, J. A.; that he therefore might have sued in his own name in his lifetime, and of course his representatives since his death might prosecute; that the action followed the nature of the interest or benefit, and none passed to E. W. Lord Kenyon said it could not be distinguished from Slingby’s case, 5 Co. 18, b., and after commenting upon that case, he observed, “ It has been assumed in the argument for the plaintiff, that the covenantees had dif-' ferent interests, but that is not so; the covenant to both was for the same thing, and though the benefit was only to one of them, yet both had a legal interest in the performance of it, and therefore the legal interest being joint during the lives of both, on the death of one, it survived to the other.” A case there cited by the defendant’s counsel is like the one in question. Yelv. 177. Bull. N.P. 158. In an indenture between Rolle and another of the one part and Yate of the other among other covenants, one was, “ It was agreed between the parties that Yate shall enter into a bond to pay Rolle £160 by a certain day. Rolle died, the money not being paid; his execu *161 tors brought covenant against Yate, and it was decided that the action should have been in the name of the survivor. After the above distinction between the legal interest in the execution of a covenant and a benefit to be derived under it, it is very clear that this suit was rightly brought in the names of the plaintiffs. As was said in the above case, in reference to one of the parties there, the only interest here which Martin has in the agreement is, to see that the defendants have fulfilled their covenants, which are for the benefit of his co-covenantee. This interest is joint, and not several, as is the case where one covenants with A. and B., and each of them to perform two things, one of them for the benefit of A. and the other for the benefit of B. In such a case the covenant will be moulded according to the several interests of the parties, and each may recover for a default, so far as his separate interest is concerned. The legal interest and cause of action of the covenantees would be several; and though in form the covenant was joint, the actions might be several. Eccleston v. Clipsham, 1 Saund. 153, and note 1. 10 Wendell, 91 . 1 Chitty, 6.

Judgment for plaintiffs, with leave to defendants to amend on payment of costs.