Summary
On appeal from the circuit court of Panola county; Hon. Hugh R. Miller, judge.
On the 29th of January, 1845, John C. Hill made affidavit, that Thomas B. Hill was indebted to him in the sum of $542, and was about to remove his effects, so that the claim would be lost. Bond was given, and an attachment issued, which was levied on a tract of land. The declaration was upon an arbitration bond, dated October 11, 1844, in the penalty of $1000 with this condition: “ That there had been a suit pending in the circuit court of Panola county, in the state of Mississippi, wherein the said John 0. Hill was, and had been plaintiff, and said Thomas B. Hill defendant; and that the said parties had been desirous that there should be an end of litigation between, them, and that they had agreed to refer the same to Calvin Miller and Orville Harrison, the attorneys of the respective parties, to settle the matters in controversy; and that if said attorneys could not agree, to choose an umpire, and that if the said Thomas B. Hill did, and should faithfully abide by, and perform the award or decision of the arbitrators and umpire, if called in, the obligation should be void ; otherwise in full force.” The declaration avers, that on the 17th of October, 1S44, the reference was made to the arbitrators, who, with Elisha Q,. Vance, whom they duly chose as an umpire, on that day, awarded, that Thomas B. Hill should pay to John C. Hill the sum of 8530, to be paid on or before the 27th day of October, 1844; and that said Thomas was also to pay, and should pay, all costs that had accrued, or was to accrue in consequence of said suit in the circuit court; and that if the costs of the appeal of the case in the high court of errors and appeals had been paid, that said Thomas should pay the same to whoever should be or was entitled thereto; that when the award was, and had been complied with, the said John C. and Thomas B. Hill should execute clear receipts to each other respecting said suit, and for every thing thereby put in controversy. Proferí was made of the award, and the breach assigned was the non-payment of the money awarded, and the costs in the circuit court. The declaration was signed by Calvin Miller, attorney for plaintiff.
The defendant plead, by Harrison and Vance, his attorneys, 1. Payment, on which issue was taken. 2. That the arbitrators had transcended their authority in finding the award before the dismissal of the suit between the parties in the matter referred, which was to be dismissed before an award was given, yet was still pending. Replication and issue, in short, were filed to this plea. 3. That the award was' made without notice to the defendant of the time and place of the submission, and in his absence. To this the plaintiff replied, that the defendant had notice, and issue was taken. 4. That there was no such award as that alleged. 5. That, by the award, it was stipulated, that the plaintiff, in the event the defendant did not comply with it, could either sue on the arbitration bond, or prosecute his original suit, and without making known his election, the suit on the bond had been brought.
To the fourth plea, the plaintiff replied, by setting out the award sued on, in these words: “ Whereas, a suit has been pending in the circuit court of Panola county, state of Mississippi, between John C. Hill, plaintiff, and Thomas B. Hill, defendant; and whereas, Orville Harrison and Calvin Miller were selected by the parties to arbitrate the matter, with the understanding, that if they could not agree, they should refer it to an umpire; and whereas, the said arbitrators not agreeing, have chosen E. Q.. Vance, as said umpire, who has, and does hereby decide, that Thomas B. Hill shall pay to John C. Hill the sum of five hundred and thirty dollars, to be paid on or before the 27th inst. (October, 1844;) and the said Thomas also to pay all costs that have accrued, or to accrue, in the circuit court; and if 'the costs of the appeal of the case in the high court of errors and appeals have been paid, said Thomas is to pay the same to whoever is entitled thereto. It is further decided, agreed, and understood, that the said suit between the parties is not to be dismissed or set aside until the said sum of five hundred and thirty dollars shall be paid, and if the same shall not be punctually paid as above specified, and the award in all things fully complied with, on the part of said Thomas, then the said John C. is at liberty to prosecute the said suit at his option, or to rely on his bond. It is agreed, current bank notes of the good and solvent banks of the state of Tennessee will be received by the said John C. on or before the 27th inst., as awarded; the money to be paid at the office of Calvin Miller, in the town of Panola, to said John C. Hill or his order; that if the award is complied with, and when it is done the said John C. and Thomas B. Hill are to execute clear receipts respecting said suit, and for every thing thereby put in controversy. In witness whereof, and that the foregoing is our true and just award, we hereunto set our hands and seals, this 17th day of October, 1844.
C. MilleR, [seal,] ] » 00 f-t
The defendant demurred to this replication for various special causes; but the demurrer was overruled, and the defendant refused to rejoin. The plaintiff demurred to the fifth plea, and the demurrer on argument was sustained. A trial was had on the issue; the proof consisted of the arbitration bond, the award, and the evidence of the arbitrators, who proved that they had given no notice of the time and place of the submission to the defendant, and that the arbitrators met without any previous agreement as to time and place. The plaintiff was present at their deliberations; the defendant was not. The costs in the circuit court were proved to be seventy-eight dollars. The jury, on this proof, found for the plaintiff for the sum awarded and the costs. The defendant moved for a new trial, and on its refusal appealed.
1. The court erred in overruling defendant’s demurrer to plaintiff’s replication to the fourth plea. The award in said replication set out, was void for uncertainty, for want of mutuality, and because it did not make a final disposition of the subject matter of the reference. 9 Mete. 164, 170; 3 Bing. N. C. 74; 7 Term. R. 73; 11 Wheat. 446 ; 5 S. & M. 712; 23 Maine R. 259.
2. The motion of the defendant for a new trial should have been sustained. The action of the plaintiff was prematurely brought. Under the award, no right of action accrued to plaintiff, until he had informed the defendant of his election to abide by the award, and not farther to prosecute his suit, the subject matter of the reference, and had offered to execute to defendant the receipt for which the award provided. 1 Chitty, PI. 327-330; 3 N. Jersey R. 294. This point was presented by defendant’s fifth plea, and the court erred in sustaining the demurrer to this plea. That the motion for this cause should have been sustained. 6 S. & M. 89.
3. The verdict was contrary to evidence. The defendant’s third plea was fully sustained by the testimony before the jury. This plea avers that the award was made by the arbitrators and their umpire, without notice as to the time and place, when and where they were to meet; and did meet and act upon the submission, and in his absence, and when he was wholly ignorant that said arbitrators and their umpire were considering or acting upon the said matters submitted to them. Upon this plea plaintiff took issue, by replying, that defendant did have notice, &c.
That the want of notice would have defeated the award in a court of equity, all of the authorities fully maintain. That notice would have been necessary to sustain the award in a court of law, had the submission been made a rule of court, seems no less clear, and if this be so, the want of notice goes to the merits of the case. And the plaintiff having taken issue on the plea, is now estopped by his own act from relying upon the ground that the plea was not good in a court of law. 6 Munf. 120.
But want of notice is a good plea at law. 8 Pet. 165; 23 Wend. 628. This last case is a decision by the court of errors and appeals, and reviews all of the previous cases, and directly sustains the position now contended for.
Allusion is made to this point in Upshaw v. Hartgrove, 6 S. & M. 286, and there the award was held to be prima facie good on pro confesso, even though the bill did not aver that the award was made on notice. Had the pleadings and proofs made this point, there can be no question as to how it would have been decided.
4. No right of action accrued to the plaintiff below on the award, until the expiration of ten days from its date, and not then, but at the election of said party. This election made the award void for want of mutuality and finality. Kyd on Awards, 217, 218.
I. The third plea of appellant is, that he had no notice of the time and place of the meeting of the arbitrators. No notice is necessary, where the submission is not under a rule of court. Miller v. Kennedy, 3 Rand. 2; Elmendorf v. Harris, 5 Wend. 516 ; Braddick v. Thompson, 8 East, 344, and authorities there cited ; Upshaw v. Hartgrove, 6 S. & M. 292.
The case of Elmendorf v. Harris, it is true, was overruled in the senate of New York, but- we feel disposed to adhere to the decision of the supreme court, as it is in consonance with the Virginia decision, and all the English authorities The senate seems to have relied mainly upon the case in 8 Peters, which was a reference under a rule of court. We have not been able to see the other authorities referred to by the chancellor, but have no doubt that some peculiarity like that of Peters, could also be found in them.
If no notice were necessary, then the issue was immaterial, and cured by verdict. Chichester v. Daggett, 2 How. 863; Keithley v. Borwm, lb. 683; Walker, R. 421.,
2. But it is insisted, that, having replied to this plea, instead of demurring, we have placed ourselves in the same position in which we would have been placed had a bill in equity been filed, and that equity would grant relief. Granting, for argument’s sake, the correctness of the first branch of this proposition to be true, still the latter part is not, and a court of equity would not grant relief upon this plea. It does not state that the party had any witnesses, that he had any proof, that he had no opportunity of submitting the same, and that injustice was done. Almost all of these allegations were found in the plea of Elmen-dorf v. Harris, and the jury found the plea to be true. But in the present case, the jury found that the appellant had notice, which brings us to our next proposition.
3. The jury were warranted from the testimony in finding this issue for appellee. It was a point left with them. The parties by their bond agree to submit a controversy then depending in court to their respective attorneys. Those attorneys had been attending to the case for a long time, (we are justified in saying so, as the case had been to the high court.) They were the attorneys of the parties on the very matter submitted, and with full knowledge of all those matters they meet and make their award. Were not the jury justified in finding that appellant had notice? The appellant himself did not think of this defence until long after the suit.was brought, as this plea was filed after the imparlance term. The wording of'the submission bond is worthy of notice. The submission is to the attorneys of the respective parties to decide. It is to them by the description of attorneys, and not as arbitrators. The case of Elmendorf v. Harris, decided in the senate, determines that the arbitrator is the judge of what is proper notice. Harrison, the attorney, and arbitrator of appellant, doubtless determined that he knew his client’s case full well, and that notice to him was notice to his client. The jury were the appellant’s chancellors, and even as chancellors, they, under the peculiar plea, and with the evidence before them, decided properly. Notice will be presumed even where the arbitrator swears that he does not know that the party had it. Mendenhall v. Smith, 1 Alab. R. 380.
4. In the next place it is alleged, that the award is bad because it determines the matter of the cost of the high court, and in this respect is also uncertain.
We are willing to take the position, that the arbitrators did exceed their authority, so far as the costs in this court were concerned. But this can be separated from the remainder of their award, and, according to well settled principles, cannot vitiate that remainder. The bad shall not vitiate the good. 5 S. & M. 712; 23 Maine R. 259; Bacon v. Wilber, 1 Cow. 117; Kyd on Awards, 244 - 246, edition of 1808; Atchison v. Cargy, 2 Bing. 199.
5. It is next urged, that the award does not settle which of the Tennessee banks are good and solvent. Certainty to a common intent is all that is required. It is true that such notes are not a legal currency in the constitutional sense, but still in common acceptance, “ to a common intent,” are money. This is a ministerial, not a judicial act.
Further, an award “for £991 11s. 9d. sterling money of Great Britain, payable in good safe sterling bills of exchange on England or Holland to that amount, or so much current money as will purchase money, such bills,” was held good and sufficiently certain in Warder v. Wkiiall, 1 Coxe, 84.
6. But it is, lastly, contended, that there is no mutuality in the award, nor is it final. But there is mutuality.
Appellee could not prosecute his suit for ten days, and if the money was paid then, the suit never could be prosecuted. Here was a stipulation for appellant’s benefit, in which appellee could not participate. If the money was not paid, then he had his right either to prosecute his suit, or sue upon the bond', in which appellant could not participate. But all difficulty on this point must cease, if our view on the other branch of this objection be correct. Appellant says the award was not final. We contend that the provision in regard to the prosecution of the suit was a matter beyond the jurisdiction or control of the arbitrators; that they exceeded their authority in this particular; but as this portion can be separated from the balance, it shall be disregarded, and the good shall stand.
It has been decided that even a parol submission to arbitration of a suit ipso facto dismisses it. Larkin v. Robbins, 2 Wend. 505. To the same effect are the decisions of Wells v. Lam, 15 Wend. 99; 18 Johns. 23; 6 Cow. 399; 12 Wend. 504.
But again, any proviso added to an award, after the adjudication of the subject submitted, which would avoid the award, is itself void. Kyd on Awards, 216, 217. In this case there was an award made, that appellant should pay $530 and costs, but afterwards a proviso is made, which may avoid it. According to Kyd, this proviso is itself void, but the balance is good.
As to this point we particularly refer the court to the case of Wright v. C. C. Company, 1 Adolph. & Ellis, N. S. 98; 41 C. L. R. 454. See also Butler v. Mayor &c. of Neiu York, 1 Hill, R. 489.
7. As to the authorities cited by appellant upon this point, (mutuality and finality,) we can only say, that in 9 Metcalf, the arbitrators did not decide all the matters submitted to them. In 3 Bing. 74; 7 Term R. 74, we can see nothing against us; in 11 Wheat, the arbitrators did not fix the time of giving the credit, or when the conveyance should be made; in 5 S. & M. they decided that a third person, not a party to the award, should do a particular act; and in 23 Maine R. the award was void, because the arbitrators decided that one of the parties should pay the other goods or property equal to such as he had received, without stating value, quantity, or quality.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
