Walker v. Merrill

The opinion of the Court, after a continuance for advisement, was drawn up by Emery . J. The suit is an action of debt arising on an award of arbitrators. By the submission, which was under seal, the parties agreed to submit all claims and demands of each against the other, and also all claims of Merrill & Higgins against Walker, and all claims of Walker against Merrill & Higgins, and each covenanted to abide by and perform the award and pay the other whatever sum may be awarded as soon as said award shall be made known to him. And it is further agreed that the costs incurred in the late cross suits of the parties shall be taken into consideration, and awarded according to equity. The defendant objects to the right of the plaintiff to maintain this action upon the award, because although it was first made for $55,83, and" below that award which tvas in full of all claims and demands aforesaid, of every name and nature, is the following: “The undersigned, appointed referees or arbitrators to settle all claims between Willard Walker and Ambrose Merrill, berebj' certify that in their award made this ninth day of ¡September, 1834, awarding to said Walker to recover the sum-of fifty-five dollars and-thirty-three,.cents, in full of all claims and demands, we have awarded seven dollars and seventy-eight cents only for costs and expenses of said reference, and forty-seven dollars and fifty-five cents debt and costs of former suit of said Walker against said Merrill,” which as well as the award is signed by all the arbitrators. It is insisted that they have included in the award costs, which was not authorised by the submission, and that the award is void. It is also objected, that the arbitrators could not make any explanatory statement, or correct errors, and that the Court cannot perform the office for them. That even a Court of Equity enforces an award or sets it aside, and that if the bad part of the award be not distinct and independent of the rest of the award, the award is bad in the whole. We are to regard principally the intention of the parties in the [177] interpretation of submissions, and put upon them a fair and liberal construction. And a like favorable consideration is to be extended to the award. There is no limitation to a particular day in the submission within which the award is to be made, but the arbitrators are to decide as soon as may be. It is not that it shall be ready to be delivered in writing to the parties, but the stipulation is to pay whatever sum may be awarded as soon as the award shall be made known to him who is to be charged. And there is nothing in the statement of facts which compels us to the conclusion, that there was any award made known to the parties, but what has been termed the award and the explanatory award. They bear date on the same day, and the explanation was shewn to the defendant, and there is no agreement in the statement of facts that the other award was first shewn to him. We are authorised by the parties to infer any further facts from those agreed that a jury might reasonably infer. It. would reasonably be inferred that ¿lie arbitrators, to prevent misapprehension of the amount in \v Inch they had attempted to charge the defendant, were desirous of l otting out how much was for costs of reference, which they bud r. >f been expressly authorised to award, and how much for debt and costs of a former suit, which they were by the submission am' ■■ ’..sed to We ienk ibero is much good sense in the ideas suggested in the New York case of Strang v. Ferguson, 14 Johns. 161, that costs may be awarded as a necessary incident to the authority. Yet this subject was settled in the case of Gordon v. Tucker, 6 Greenl. 247, that the costs of reference cannot legally be allowed. To this extent there is displayed an excess of authority. But the whole of the award is not void. We can well separate that part. We are satisfied that the plaintiff is entitled to sustain his action. And according to the agreement of the parties the defendant is to be defaulted, and judgment rendered for the plaintiff, for forty-seven dollars, fifty-five cents, debt, with interest thereon from the date of the writ.