Opinion
December Term, 1851
Le Roy Morgan, for appellants.
J.F. Sabine, for respondents.
It is objected by the defendant, that the arbitrators have not determined how much was actually paid on the contract between the defendant and Edward and Joseph Ott; a matter specially submitted to their decision; and that the omission to make a determination as to this matter vitiates the whole award. It is insisted that the endorsement on the contract is not an award; and if an award, that it is radically defective, because it does not contain an adjudication of how much had been paid on the contract, up to the date of the bonds of submission.
I think the endorsement on the contract may be regarded as a part of the principal award. The endorsement and the award were simultaneous acts of the arbitrators. Having been made at one and the same time, they must be considered as constituting but one instrument, and must be construed as such. ( Chit. on Con. 89 n. 1; 13 Wend. 122; 10 Pick. 250, 302.) If the substance of the endorsement had been incorporated in the body of the principal award, or endorsed upon it, it would have been unobjectionable in form as a determination of the amount paid on the contract.
The endorsement on the contract is good as a distinct award. Any form of words which amounts to a decision of the questions submitted is good as an award. No technical expressions are necessary, nor any introductory recitals. ( Russell's Arbitrator, 244, 5.) On a submission in relation to dilapidations, the report of an umpire in these words: "I "have surveyed and estimated the several works necessary "to be done in repairing the dilapidations to a house, c., "and find the same amount to the sum of 55 l. 5 s.," was held a good award, binding on the parties. ( Whitehead v. Tattersall, 1 Adol. El. 491.) So the words, "I am of "opinion that Messrs. M. Co. are entitled to claim of T. " Co. 134 l., for nonperformance of their contract for 50 "puncheons of brandy," were held by ABBOTT, Ch. J. a sufficient award. ( Matson v. Trower, Ry. Moo. 17.) In Platt v. Smith, (14 John, 368,) where the arbitrators wrote in the margin of their award the words, "G.P. is to give up "the note which he holds against N.S. Co;" the court held they were to be considered as a part of the award, and to receive the same construction as if they had been inserted in the body of it. The arbitrators in this case in the endorsement on the contract made and signed by them, adjudicate that the amount paid on the contract up to the 1st January, 1841, is $530.62, and to indicate that this endorsement is made and signed by them as a separate award, or as part of the principal award, they declare that the amount so paid "by our award amounts to $530.62." The endorsement is properly attested by a subscribing witness as to two of the arbitrators who subscribed the endorsement; the same two who alone subscribed the principal award. The signature of the third arbitrator who did not unite in the principal award, and which is not attested by the subscribing witness, may be rejected, or regarded as surplusage. The submission only requires that the award be subscribed by two of the arbitrators.
The principal question in the cause is, whether the endorsement on the contract considered as an award valid in its form, is not radically defective because it does not embrace the whole of the specific matter referred, by an express determination of the amount paid on the contract, to the date of the bonds of submission. The award is confined to the amount paid, up to the 1st day of January, 1841, nearly two years prior to the date of the submission bonds.
If the submission is made conditional by the clause of ita quod arbitrium fiat de præmissis, and recites several distinct matters which are specifically referred, and the arbitrators omit to decide one of the matters, and there are no general words in the award which can be construed to embrace a decision on such particular matter, the whole award is bad. ( Baspole's Case, 8 Coke R. 97; Randale v. Randale, 7 East. 83; Jackson v. Ambler, 14 John. 96; Willes, 268; Wright v. Wright, 5 Cow. 199; Russell's Arbit. 250, 1, 5; Rider v. Fisher, 3 Bing. N.C. 874; Simmonds v. Swaine, 1 Taun. 549, Per Chambre J.; 1 Saund. R. 32, note 1; Ross v. Boards, 8 Adol. El. 290; 1 Bac. Ab. Tit. Arbit. E. 216; Cro. El. 838; Lutw. 545.) Where the submission containing the ita quod clause is general, but the adjudication applies in terms only to a particular matter, the award, if it purports to be made concerning the matters submitted will be presumed good, until it is proved that there were other matters before the arbitrator, which he neglected or refused to decide. ( Russell's Arbit. 258, 261, 264; Ingram v. Milnes, 8 East. 444; Baspole's Case, 8 Coke, 97; 5 Cow. 199; 9 Adol. El. 522; 1 Bur. 277.) No objection can be taken to the award for the arbitrator's omission to decide matters not brought to his notice. ( Russell's Arbit. 252; 8 East. 444; Cro. Jac. 200; 5 Mylne Cr. 281; 1 Peters, 226; 1 Bar. Adol. 723; 2 Adol. El. 752.) If the arbitrator on the face of his award, made upon a general submission expressly excepts from his decision a particular matter within the scope of the submission, the award will be void in toto. ( Russell's Arbit. 253; 5 Cow. 199; Turner v. Turner, 3 Russell, 494; Willes, 268.) An award made under a general submission is final as to matters within the submission, although not brought to the notice of the arbitrator, nor embraced in his award. The parties are bound to claim before the arbitrator all demands coming within the scope of the submission; and if they fail to do so they will be concluded from ever after asserting such demands. ( Fidler v. Cooper, 19 Wend. 288; Dunn v. Murray, 9 Barn. Cres. 780; Smith v. Johnson, 15 East. 213.)
The question in this case is whether the arbitrators have passed upon the whole of the distinct matter specifically submitted. They have made an adjudication upon such matter; but it is objected that such adjudication is not co-extensive with the submission; that it does not embrace payments which may have been made on the contract between the 1st Jan. 1841, and the date of the bonds of submission. The arbitrators undoubtedly had power to determine all matters in controversy existing at the time of the submission. (9 Adol. El. 522, Littledale, J.) They merely determined the amount of the payments made on the contract up to the 1st of January, 1841. It is insisted on the part of the appellant that, as there is no allegation or proof in respect to any payments made after that day, it will be intended there were none. On the other side it is contended that as the finding is expressly limited to the 1st day of January, 1841, all ground for presumption that the arbitrators intended to embrace in their award the two succeeding years, is precluded. If the submission had been general, to impeach the award, it would have been necessary to show that there were matters in difference in relation to payments made or claimed to have been made between the 1st January, 1841, and the date of the submission bonds, which had been brought to the notice of the arbitrators, and which they had declined to determine. But it is said that the rule is different in relation to a specific submission of a distinct matter. ( In 1 Bacon's Abridgt. title Arbitr. E. p. 217,) it is said, "that "if two submit all actions till the 9th of June, ita quod, c., "and an award is made of all actions till the 7th, some have "said this is less than the submission, and void; but the "better opinion is that this is well enough, especially unless "there be shewn on the other side an action arising between "the 7th and 9th." In Ingram v. Milnes, (8 East. 450,) LAWRENCE, J. referred with approbation to 1 Com. Dig. Tit. " Arbit. E. 10, where it is said, "that if an award recites that "controversies were depending the 29th of January, and it "be made de et super præmissis of all matters till the 28th "January, it is good; for it shall not be intended, unless it be "averred, that any matter was depending on the 29th which "was not so on the 28th." In Bussfield v. Bussfield, ( Cro. Jac. 577,) the submission, (dated December 1st,) was of all matters and controversies; and the arbitrator awarded that the parties should release to each other all actions and demands which existed before the 28th of November; and it was held, it should be intended that no controversies arose between the 28th of November and the 1st of December. A like decision was made in Ward. v. Uncorn, ( Cro. Car. 216.) In Barnes v. Greenwell, ( Cro. Eliz. 858,) where the submission was of all suits, c., depending until the day of the date of the bond of submission, which was the 4th of September, and the arbitrator made an award of all matters until the 3rd of September, the court decided that the award was good, and that it should not be intended that there were other matters depending unless they were shewn. These authorities tend to shew that in this case the court is authorised to presume that there were no payments made between the 1st day of January, 1841, and the date of the submission bonds, or that on the latter day there was no matter in controversy depending in relation to payments on the contract, which was not depending on the 1st January, 1841. This is not the case of an omission to determine a distinct matter specifically submitted. Here the arbitrators actually pass upon the matter submitted. They say in their award that they have heard the proofs and allegations of the parties, and examined the matter in controversy by them submitted in the bonds of submission; and then they find that the whole amount paid on the contract up to the 1st January, 1841, is $530.62. They declare they have passed upon all the matter submitted, and find the amount paid to that day. It seems to me under the rule that every reasonable intendment must be made to uphold an award, (1 Peters, 228; 2 Cow. H. Notes, 1028, that in this case we must intend that no more than the sum endorsed on the contract had been paid up to the date of the bonds of submission; and that the arbitrators embrace in their finding the whole period down to that time. We have a right to presume that there was no evidence before the arbitrators of any payments subsequent to the 1st of January, 1841, and that therefore they inserted that date in their award. This being the conclusion at which I have arrived, I am of opinion, and such is the opinion of the court, that the award is valid and binding upon the parties. The judgment of the supreme court must therefore be reversed, and a judgment must be entered in favor of the plaintiffs for the sum found by the special verdict to be due to them.
On looking at the submission and awards, it is manifest that the arbitrators have passed on the two matters submitted to them, and intended to make, and have substantially made their award upon them. If the controversies between the parties are not closed by the judgment of this court, of their own creation and selection, it is because some technical rule on the subject of awards has been violated.
I concur in the opinion of the supreme court delivered by Mr. J. GRIDLEY, that the two matters in dispute between the parties, mentioned in the bonds of submission, were submitted to the arbitrators; but I do not think it follows, and cannot concur in the position, that an award upon each must be embraced in the same instrument.
The learned judge discussed this point with his usual clearness and ability when this case was before the supreme court on an issue of law, (4 Barb. S.C.R. 250,) and came to the conclusion, that as the two matters submitted were distinct, a separate award might be made upon each. This conclusion appears to me to be sound; and I do not see any such difference between the case, as it stood on the issue of law, and as it now stands on the special verdict, as should lead to a different opinion on this point. It is true, as mentioned by the learned judge, that both awards were not fully set forth on the former occasion, but the bonds of submission were, and on them alone depends the question, whether the two matters submitted are so distinct as to admit of separate awards. It appears to me that there is no room to doubt that the parties not only submitted two distinct matters, but provided for separate awards upon them. The language of their bonds is clear and explicit on this point. While the correctness of the rule is admitted, that each party has a right to claim that both subjects shall be awarded upon, yet it is unreasonable, and contrary to the received doctrine on this subject, that the parties may not provide for separate awards. I place my opinion in this case in favor of the correctness of separate awards, on the meaning and true construction of the bonds of submission.
The only remaining question is, whether the endorsement on the contract is an award in pursuance of the submission. The terms of the submission are, "to hear all the proofs and "allegations of and concerning the amount which has been "actually paid upon a certain contract between the said "Schroeppel of the one part, and the said Edward Ott and "Joseph Ott of the other part, of date March 1st, 1835, which "in justice should be applied thereon, and endorse the amount "so found on said contract."
On that contract is an endorsement, signed by the arbitrators bearing even date with their formal award on the other matter submitted, viz: 28th January, 1843, in the following words: "The whole amount which has been paid, "actually on the within contract, up to the first day of January, "in the year 1841, is, and by our award, amounts to, "the sum of five hundred thirty dollars and sixty-two cents, "given, c." In my judgment, this is an award, in substantial compliance with the submission. To hold the contrary, would do violence to common sense and sacrifice substance to form. There are two objections made to it.
1. It is said the submission required the arbitrators to decide the amount actually paid on the contract up to the date of the submission, viz: 28th December, 1842. The answer is that they have so decided; for in the absence of an averment to the contrary, the court are bound to presume there were no payments made, nor any controversy between the parties respecting any payments after the 1st January, 1841. If in point of fact, there were no payments on the contract after the first of January, 1841, nor any question raised before the arbitrators concerning any such payments, and that fact appeared, the award would be good. But the true rule is more favorable still, to the validity of the award. "Everything is to be intended in favor of an award." ( Watson on Arbitration Awards, 122.) In accordance with this principle, it has been held in this state, ( Case v. Ferris, 2 Hill, 75,) that, "if there is nothing on the face of an "award shewing that it may not be rendered certain by "matter extrinsic, the intendment will be, that it is certain, "until the contrary be shewn." And on the very point under consideration, SPENCER, J. in the case of Jackson v. Ambler, (14 John, R. 106,) states the rule in these words: — "for though the words of the submission be more comprehensive "than those of the award, yet if it do not appear, "that anything else was in dispute between the parties beside "what is comprehended in the award, the award will be "good."
This decision is decisive against the objection that the award is not as comprehensive as the submission.
2. The other objection to the award is, that there is a witness to the signatures of only two of the arbitrators.
The answer which the learned judge gave to this objection, when the case was before the supreme court on demurrer, is the true one. (4 Barb. S.C.R. 255.) It was, that "in law, the award not being attested as to the third arbitrator, "was not his award. It was, in legal intendment, "the award of the two, who subscribed it, and whose signatures "were attested." It should be noticed, however, in this connection, that the submission provided, that the award should be in writing, subscribed by the arbitrators, or any two of them, and attested by a subscribing witness. Hence an attestation to the subscription of two of the arbitrators is a full compliance with the requirement of the submission.
Judgment reversed without costs, and judgment for appellants, with costs in the supreme court.