Henrickson v. Reinback

1. Awards—ride of construction. An award, being the judgment of a tribunal of the parties’ own choosing, should be liberally construed to sustain it, if it does not lack two essential properties, namely, certainty and finality. 2. Same—certainty required. The certainty of an award is judged of only according to a common intent, consistent with a fair and reasonable presumption. 3. An award will not be disturbed which is so far certain, as from the nature of the subject of it could be reasonably expected; and when the directions of the arbitrators, though not decidedly certain upon the face of the award, can, with tolerable ease, be reduced to a certainty, as by reference to any written document, or the inspection of any particular thing, house or land, an award will not be, on such ground, impeachable. 4. The partnership affairs of two firms were submitted to arbitration. The arbitrators awarded that one of the parties, who was a member of both firms, account and pay to the two firms a stipulated sum, that the parties be entitled to the proceeds of all uncollected and outstanding assets of those firms in equal amounts, and that the costs of arbitration be equally divided between the parties. It was held, the award settled the rights and liabilities of the parties with sufficient certainty. The presumption being that, as partners, the parties were equally entitled to the proceeds of the partnership, and in equal parts to the amount found to be due from the partner who was indebted to the firm, the award was relieved from all uncertainty. 5. Awards—mustie final. An award must make a final disposition of the matters submitted. 6. Pleading—one of severed breaches good, general demurrer to alt. In an action of debt on a penal bond, the several breaches assigned are analogous to several counts in a declaration, and if one count be good a general demurrer to all will not be sustained.

Writ of Error to the Circuit Court of Morgan county; Hon. David M. Woodson, Judge, presiding. This was an action of debt instituted by the plaintiff in error to recover for the failure to comply with the award of arbitrators. , • The declaration alleges that in the year 1858 the plaintiff and defendant were doing business as partners under the firm of Henrickson & Reinback, and also doing business under the firm name of Eeinback & Van Winkle, and having various matters of dispute respecting their accounts with the said firms and their interest therein, submitted the disputes to arbitration, and that the plaintiff, with Michael Henrickson as security, and the defendant, with Louis Eeinback as security, entered into an arbitration bond in the sum of $5,000, to abide the award of the arbitrators. The arbitrators made the following award : “The undersigned arbitrators, after hearing the testimony and upon due consideration thereof, do award that said Harry Eeinback do account to and pay to the firms of Henrickson & Eeinback and Eeinback & Van Winkle, the sum of $1,296.90, and that the parties be entitled to the proceeds ■ of all uncollected and outstanding assets of said firms in equal amounts, and that the cost of the arbitration be equally divided between the parties.” The declaration was against Harry Eeinback and Louis Eeinback, his security, and alleges that the bond was lost, and after the averment that the plaintiff was at all times ready and willing to perform and keep the award, assigns breaches as follows: “Yet the said Harry Eeinback, though often requested, has not nor would account and pay to the aforesaid firms of Henrickson & Eeinback and Eeinback & Van Winkle, nor account to and pay to said plaintiff the aforesaid sum of twelve hundred and ninety-six dollars and ninety cents, nor any part thereof, and hath not nor would give nor pay to said plaintiff, nor allow him to receive one-half of the proceeds of all uncollected and outstanding assets of said firms of Henrickson & Eeinback and Eeinback and Van Winkle, nor any part thereof, and hath not nor would pay one-half the costs of the aforesaid arbitration, nor any part thereof, but so to do the said defendant, Harry Eeinback, hath hitherto wholly neglected and refused, and still doth refuse; and the said plaintiff further avers, that the said defendant, Harry Eeinback, since the making the aforesaid award, and in violation of the terms thereof, has, of the proceeds of the assets of the said firms, outstanding and uncollected at the time of the making said award, received and converted to his own use a large amount, to wit, the sum of two thousand dollars; and the said plaintiff further avers, that since the making of the aforesaid award, and by reason of the failure of the said Harry Eeinback to keep and perform the same, he, the said plaintiff, has been forced and obliged to pay, upon demands against the aforesaid firms of Henrickson & Eeinback and Eeinback & Van Winkle, a large sum and large sums of money, amounting in the aggregate to the sum of, to wit, two thousand dollars, by reason whereof an action, &c.” To this declaration the defendant filed a demurrer, and assigned for reason that the award was void for uncertainty. That the plaintiff claims that he is exclusively entitled to have account for payment herein of $1,296.90, and because the plaintiff claims damages to the amount of $2,000 over and above.the amount he claims by the award, for not abiding by the award. The court sustained the demurrer, and judgment was rendered against the plaintiff for costs. Thereupon he sued out this writ of error. The question arising upon the record involves the sufficiency of the award in regard to its certainty and finality.