Efner v. Shaw

By the Court, Sutherland, J. A promise to pay the amount at which the arbitrators should estimate the labor and services performed by the plaintiff beloxv upon the house mentioned in the submission, is implied in the agreement of the parties contained in the submission, to abide by the decision of the arbitrators. The submission admits that the defendant ought to pay what the labor was worth, and leaves nothing to be done by the arbitrators but to determine the xralue of such work. If the work was originally performed under a special contract fixing the price, it might be questionable whether the plaintiff could, after the submission, sustain an action on the original agreement; and if not, he would have no remedy except in an action like this upon the award. But admitting the plaintiff might have brought an action for work and labor, and have given the axvard in evidence, it does not follow that he could not sue on the award itself. The submission being special, to ascertain the value of the work, the defendant had a right (and was permitted by the court) to set off any claim or demand xvliich he could prove against the plaintiff; and it is a mere matter of form, whether the action be put in one shape or the other. If the defendant could show that he had already paid more than the arbitrators said the work was worth, no recovery could be had against him. The evidence offered by the defendant, and rejected by the court, was properly excluded. A part of it went directly to vary the terms of the written submission, which was clearly inadmissible, (9 Johns. R. 38 ;) another portion of it, to shoxv that the arbitrators had made mistakes in their award, not that they had been guilty of partiality or corruption, all the cases decide cannot be done at laxv. (3 Johns. R. 736. 3 Caines, 166. 2 Johns. R. 62. 9 Johns. R. 212. 2 Johns. C. R. 557. 7 Cowen, 185.) [570] The promise of the plaintiff to correct any mistakes which the arbitrators might have made, was without consideration. He did not admit that there were any mistakes. It was a mere voluntary engagement on his part to correct any error of the arbitrators ; that is, if he could be satisfied they had erred in any particular, he would rectify it. He did not intend that the award should be abandoned, and the whole case re-examined. At all events, the defendant could not avail himself of it by way of set off' or defence in this action. The only point in relation to which I entertain any doubt is, whether the bill of particulars or items of the work, and their prices as found by the arbitrators, should have been served upon the defendant, or at least notice thereof given to him before suit brought. But, on the whole, I am inclined to think it was not necessary. He had notice of the aggregate amount, which I think was sufficient. By the submission, the arbitrators were to make a statement of the value of the work, according to the usual prices paid in the country. This merely prescribes the rule by which the labor was to be valued, (the usual price paid in the country,) but the aggregate amount is the award, and of that the defendant had notice. (Kyd on Awards, 115.) Judgment affirmed.