Allen v. Galpin

By the Court, Cady, J. The question in the cause is, does the plaintiff’s declaration show that the arbitrators had any power to make the award declared on 1 Unless the plaintiff has shown that the arbitrators had authority to make the award, the declaration must be bad in substance, and the award itself must be void. The agreement between the parties does not, in terms, authorize the arbitrators to make an award that one party shall pay the other any sum of money in full payment, discharge .and satisfaction of and for all damages and loss sustained by any specified matter. The defendant agreed to deliver a note for five hundred dollars to the arbitrators, and the plaintiff agreed to deliver to them a receipt in full for the defendant; and all that the arbitrators were by the agreement authorized to do, was to hear the testimony, determine on the amount of loss sustained by the plaintiff, reduce the note to that amount and deliver it to the plaintiff, and to deliver the receipt to the defendant. But the arbitrators have not delivered the note to the plaintiff, nor the receipt to the defendant; but instead of delivering the note to the plaintiff they awarded that the defendant should pay to the plaintiff five hundred dollars on a certain day and at a certain place; and instead of delivering the receipt in full to the defendant, they have sim [250] ply awarded that the payment of five hundred dollars shall be “ in full satisfaction of damages and loss which the plaintiff had or might sustain by closing up his labors and leaving the premises which he had fitted up for himself, and for other inconveniences.” This is not a discharge from any thing for which the defendant was responsible. The payment of five hundred dollars will not discharge the defendant from any cause of action whatever which the plaintiff had against him ; but a receipt in full would have discharged him from any demand which the plaintiff had. The plaintiff has not in his declaration shown how the arbitrators became authorized to make the award which they did, instead of doing as the parties had agreed they, should do. The parties had a perfect right to give to the arbitrators such powers as they pleased, and to dictate the manner in which the award should be made. They might have directed it to be written upon parchment or engraved upon brass ; or that the arbitrators should cause it to be printed; and if the arbitrators did not choose to do as they were authorized, their acts would not bind the parties. In this case, the arbitrators were authorized to make their award by delivering a note to the plaintiff and a receipt to the defendant; but that, they have not done. It does not appear from the declaration whether the plaintiff did or did not give to the arbitrators such receipt as he agreed to give, nor whether the defendant did or did not give to them such note as he bound himself to give. If the plaintiff did give to the arbitrators the receipt—and the defendant gave them the note, according to the agreement—then why did not the arbitrators make their award as the parties had agreed it should be done? Again; if the plaintiff did not give the receipt and the defendant the note according to the agreement, and this neglect of the parties gave authority to the arbitrators to make the award as they have done, that neglect should have been alledged in the declaration, for the purpose of showing the authority of the ar [251] bitrators : and the want of that allegation makes the declaration bad in substance. If the plaintiff did not deliver a receipt, or the defendant a note, according to the agreement, then the arbitrators have acted without any authority. If the plaintiff neglected to deliver a receipt, and the defendant neglected to deliver a note, according to the agreement, it was a mutual abandonment of the agreement, and neither party has any right to complain of the neglect of the other. There is another view of this case, which shows that this action can not be sustained. The agreement of the parties ought not to be understood as authorizing the arbitrators to make an award before any damages had in fact been sustained. The-agreement shows that the plaintiff then contemplated removing from the town of Exeter, and both parties took it for granted that by such removal the plaintiff would sustain damage; and such damages, not exceeding $500, the defendant seems to have been willing to pay. But no man can suppose that the defendant intended to authorize the arbitrators to determine, before the plaintiff did remove, what damages he might sustain by removing from that town, and pay such sum, whether the plaintiff removed or not. But it appears from the plaintiff’s declaration that the evidence which he gave to the arbitrators “ was touching the amount of damages which he should sustam” in removing from the town of Exeter; not what damages the plaintiff had sustained, &c.; and the plaintiff in his declaration alledges that the arbitrators did decide according to the testimony before them, the amount of loss which the plaintiff “ would sustain in removing from Ex-eter,” &c. It is therefore evident from the declaration, that the award made by the arbitrators is not for damages which the plaintiff had sustained before the award was made, but for damages which the arbitrators supposed he would sustain if he did remove from the town of Exeter. But whether the plaintiff ever will remove from that town is yet wholly uncertain. It is believed therefore, that if -there were no other objection to the plaintiff’s right to recover, the award is void, for being prematurely made. Judgment must he for the defendant, on the demurrer, with leave to the plaintiff to amend the declaration on payment of costs.