Garred v. Macey & Doniphan

Scott, J., delivered the opinion of the Court.

Garred, who was plaintiff below and plaintiff here, sued on an award made under the following sealed instrument, viz: “This agreement, made and entered into this 31st day of October, 1843, by and between Wm. M, Macey, of the first part, and James G. Garred and Ira Garred, of the *163 •second part, witnesseth; that whereas the said J. G. Garred has made ■certain improvements on the southwest quarter, sec. 4, town. 51, in range '35, in the county of Platte; and whereas the said Jas. G. and Ira, are both settlers upon the said quarter, as well as the said Macey; now, therefore, the said Jas. G. and Ira Garred do, by these presents, transfer and convey unto the said Macey, and his heirs and assigns forever, all right of pre-emption which they hold upon, or to the said land, for the consideration hereinafter set forth; and the said Macey, as principal, and A. W. Doniphan, as his security, do by these presents bind and oblige themselves to pay to said James G. Garred, the value of all the improvements ■that the said Garred has put upon the said lands, to be paid whenever they deliver the entire and full possession thereof to the said Macey; and it is agreed between the said Macey and Garred, that the value of the said improvements is to be ascertained by the award of five respectable housekeepers of Platte county, who are not related to either of the parties, and who do not reside within three miles of said land; two of the •said appraisers to be selected by James G. Garred, and two by Macey, and the fifth one by a majority of the said four, who shall be sworn before a justice of the peace, and their award shall be final, and shall be paid when the possession is delivered as aforesaid. Such valuation shall be made before the first day of December, 1843. Given under our hands and seals,” &c.

The declaration was filed in September, 1844, and contained three •special counts. The first count, after setting out the award which was made in conformity to the agreement of the parties, avers that the plaintiff and Ira Garred were ready and willing, and offered to deliver to the said Macey the full and entire possession of all of said quarter section of land, if the defendants would pay the amount awarded as the value of the improvements, The second count avers that full and entire possession was given, according to the terms of the agreement; and the third avers that the plaintiff offered the full and entire possession of the quarter section to Macey, and that neither the plaintiff, nor Ira Garred, nor either of them, nor any other person, by their authority, has lived upon the said land, or been in possession, or had the control of the same. There were also the common counts in the declaration. To the first and third counts, there was a general demurrer, which was sustained by the Court; and the pleas of nil debet, nonest factum, and a special plea were filed to the second count. The special plea denied the delivery of the possession averred in the count. JVU debet was pleaded to the common counts. There was a demurrer filed to the plea of nil debet, pleaded to the *164 second count, which was overruled, and judgment entered on the demurer. The plaintiff afterwards asked leave to withdraw his demurrer to the plea of nil debet, pleaded to the second count, which was refused. The cause was submitted to the Court, sitting as a jury, and the plaintiff" offered to read in evidence the appraisement of the arbitrators, showing that they estimated the value of the improvements at $494 13, which was. excluded by the Court. The plaintiff then asked the Court to instruct the jury that he was entitled to recover against the defendant, Macey, the value of the improvements put upon the land by the plaintiff, which was refused, and the plaintiff suffered a non-suit, and has brought the case to this Couiff.

The first question arising, on the record, which we will consider, is whether plaintiff’s action was properly brought or not. Whether the appraisement made by those termed arbitrators was really an award, such as would justify an abandonment of the agreement of the parties in declaring and warranting a declaration on it alone;, or whether it was not an agreement under seal to pay for land,, at a price to be fixed by third persons. We were struck with the suggestion made by counsel during, the argument, that the valuation of the improvements made by those-selected for that purpose, was not an award in the proper sense of the term; and upon an examination of the authorities we are of opinion that that view of the subject is sustained. An award is defined to he the determination of matters in controversy by submission to persons indifferently chosen by the persons contending. There was no controversy between the parties in this case, before the execution of the agreement which is regarded as a submission. It was a contract to cqnvey lands at a price to be fixed by third persons. Such a reference had no tendency to the termination of a controversy, though it may have some of the characteristics of an arbitration. An arbitration is said to be a domestic-tribunal, and the arbitrators are judges of the parties own choosing, and are favored both by the Courts and law making power. The Courts not. allowing any thing to be alleged against the record, with a view to invalidate it, and the law making provisions for enforcing it. Elmendorf vs. Harris, 5 Wen. 516; Leids vs. Burrows, 12 E. 1. We do not wish to be understood as maintaining that the appraisement had none of the properties of an award; but to convey the idea that it was not an award in that sense that an action could be maintained upon it. Van Cortland vs. Underhill, 17 John. Rep. 405 ; 2 John. Chan. Rep. 339; Brown vs. Bellows, 4 Pick. 178 . The agreement is similar to those on which it is held 4hat debt.will lie to recover money if the quantity is ascertained at th® *165 time of bringing the action, though it was uncertain when it was made. Ingleden vs. Cripps, 2 L. Ray. 814; Bur. 2231; Walker vs. Witters, Doug. 6.

If the determination of the arbitrators was an award which, of itself, would have sustained an action of debt, an award, although under the hand and seal of the arbitrators, not being a specialty, nil debet would have been a good plea. ■ 2 Saun. 62. Nor does the circumstance that the submission was by deed, make it a specialty. Nil debet was a good plea to the action as it was brought, but as if it had been properly conceived it would have been ill, there is no cause of complaint in "overruling the •demurrer as it reached back to the declaration.

The rejection of the agreement as evidence under the common counts, is not error; if the plaintiff could have declared on the appraisement, it ■not being a specialty, the agreement might have been given in evidence under the common counts, the rule being that indebitatis assumpsit will not lie to recover the stipulated price due on a special contract, under seal, when the contract has been completely executed. Clendennin vs. Paulsel, 3 Mo. Rep.; Preston vs. Young, 3d Cranch; Bank of Columbia vs. Patterson’s adm’r, 7 Cran. 299; 2 Saun. 350, n. 2. As the party should have declared on his instrument which was sealed, he could not have given it in evidence under the common counts.

We are of the opinion that the demurrer to the first and third counts was properly sustained by the Court below. The objection taken to them, was that they did not show a sufficient excuse on the part of the plaintiff for the non-performance of his part of the agreement. It was not sufficient barely to allege an offer by the plaintiff; a refusal by the defendant should also have been shown, or some act by him amounting to a discharge of the plaintiff. ' The rule is thus stated by Chitty: “where the respective acts to be done by the plaintiff and defendant are mutual, and are to be performed at the same time, the plaintiff should aver his readiness to perform his part, and either state that the defendant neglected to attend when necessary, or refused to perform his part, or discharged the plaintiff from his performance.” The principle of the case of Peeters vs. Opie, 2 Saun. 350, is that it is not sufficient to allege a readiness or offer to perform on the part of the plaintiff, but also a refusal by the defendant, though it was held the omission would be cured by verdict. The authorities amply sustain this doctrine. Lancashire vs. Killingsworth, 1 Lord Ray. 687; Lea vs. Exelby, Cro. Eliz. 888; Jones vs. Barkley, Doug. 684; 2 Saun. 352, n. 3.

*166 Judge Nápton concurring, the judgment of the Court below will be-affirmed.