(June Term, 1860.)
Upon an arbitrament and award, a claim, which was entertained and preferred in good faith, though not strictly allowable in law or equity, was Held to be a good foundation for an award, and recoverable in an action of assumpsit on such award.
ACTION, begun before a justice of the peace, for an amount (505) "due by account rendered by arbitrators," and on appeal tried before Saunders, J., at last term of WAKE.
H. W. Miller and S. H. Rogers for plaintiff.
A. M. Lewis and K. P. Battle for defendant.
The defendant had employed the plaintiff as an overseer, at the price of $125 for the year, and to find his family. The plaintiff remained in the defendant's service for eight months, and, upon some disagreement occurring between them, left the defendant's service. The particulars of the dispute are stated in the case with much particularity, from which it would seem that the plaintiff was afraid that he would owe, upon a settlement, thirty-five or forty dollars. At length the parties agreed to leave the matter to two arbitrators, who were present, before whom they produced their books and opposing charges. After an adjournment, as to an item of plank, they finally awarded in favor of the plaintiff $34.85.
It seems from the case stated that the court below permitted the parties to go into the original grounds of the controversy, and, at the request of the defendant's counsel, charged that the plaintiff could not recover for the whole $125 unless the defendant was in fault and failed to furnish the necessary provisions, but that they might consider what took place between the parties after the plaintiff left the defendant's service, which would "aid them in determining the question how the plaintiff came to leave the defendant's employment, and whether the plaintiff or defendant was at fault."
Under these instructions, which the defendant excepted to, the jury found the amount awarded, and, after judgment, the defendant appealed.
This was a warrant for the amount of an award which had been made between the parties with respect to a balance due upon a contract, set forth in the case, which award was the result of an arbitration consented to by the parties.
Without going into a consideration of the question that was chiefly discussed below, of whose fault it was that the original contract was not fulfilled, we think, from the facts stated in the case, that the defendant is liable in indebitatus assumpsit upon the award (506) made.
There is a dispute about unsettled matters of account. The parties agreed to refer it (which is evidenced by their presence and conduct at the trial). The arbitrators made an award and announced it to the parties. The promise to pay what might be awarded will be obligatory, without establishing a legal demand as a consideration. It might be conceded, without breaking the force of this conclusion, that the plaintiff's claim was of a nature not to be enforced by any legal or equitable proceeding; yet, if it was entertained and preferred in good faith — made the subject of negotiation and arbitrament — then an express promise to pay the sum which might be awarded would be binding, and might be enforced. This seems to be the case before us. Findlay v. Ray, 50 N.C. 125, is believed to be in point and decisive.
We think, therefore, upon the facts stated in the case, that the plaintiff was entitled to recover according to his demand the sum awarded by the arbitrators.
PER CURIAM. Affirmed.