Nichols & Fay v. Rensselaer County Mutual Insurance

By the Court, Bronson, J. The objection that the cause of action was not fully set out in the original writ does not' properly arise. The summons is no'part of the demurrer book, though it has been copied into it. McFarlan v. Townsend, 17 Wendell, 440. Although costs were not in terms mentioned in the submission, the power of awarding them was incident to the authority conferred on the arbitrators. 14 Johns. R. 161; 2 Cowen, 638. The direction to pay “ the taxable costs of the witnesses” is sufficiently certain. It means such costs or fees as the witnesses are entitled to by law. See Kyd on awards, 135. No demand of the money before suit brought was necessary. The condition of the bond was, to pay all such moneys as should be awarded, and by the award the defendants are directed to pay certain sums, without any condition or qualification whatever. It was urged by the defendants’ counsel that as there was no time specified in the condition of the bond within which the award was to be made, and the time was fixed by a separate instrument, that the action could not be maintained for the penalty, but should have been covenant on the latter instrument. This is not like the case of Freeman v. Adams, 9 Johns. R. 115. Here no time was specified in the bond for the making of the award, and if made at any time, it would have been good. The additional agreement limited the time to the first day of October, 1838, and the award was made before that day. The award was made in pursuance of the original submission as well as of the addi [129] tional agreement, and in such a case, I can see no objection to an action on the penalty of the bond. It is said that the arbitrators exceeded their authority in awarding that the plaintiffs should assign their claims against the Saratoga Company to the defendants, and consequently that the whole award is bad. If the premises should be granted, the conclusion would not necessarily follow. An award may be good in part and bad in part, and the vicious will not overthrow the good, unless there is such a connection between them that injustice will be done if one part stands while the other fails. 13 Johns. R. 264. 1 Cowen, 117. 2 id. 638. If the same party is required to do several things, and as to some of them the award is bad on the ground of uncertainty, or because the arbitrators have exceeded their powers, this can furnish no good reason for holding the party discharged as to those things which are well awarded. But where the good and the bad relate to different parties, and the void part of the award is the consideration or recompense of the thing awarded on the other side, the whole award must fail. It would be manifestly unjust to compel one party to perform the award, When he cannot have the benefit or advantage which the arbitrators intended he should receive as an equivalent. Pope v. Brett, 2 Saund. 292 and note 1. Schuyler v. Van Der Veer, 2 Caines, 235. Lee v. Elkins, 12 Mod. 587, 589. Kyd on Awards, 244, 8, 259, 287. Watson, Arb. & Awards, 131, 135, 138. But in cases falling within this rule, an offer to perform that part of the award which is void for uncertainty or because it is out of the submission, would, perhaps, remove the objection. Lee v. Elkins, 12 Mod. 587, 589. Kyd on Awards, 259, 287. In the case at bar, although the plaintiffs may not be legally bound to assign, yet, had they tendered an assignment in pursuance of the award, the defendants could no longer complain, with any appearance of justice, that they were held to the award without any means of enforcing the performance, of the part in their favor. It is unnecessary, however, to say whether a tender by the plaintiffs would have aided their case, inasmuch as [130] there is no averment in the declaration of an offer of performance on their part. But this case does not come within the rule we have been considering. We cannot, on the face of the award, see any necessary connection or dependence between the part which requires the defendants to pay, and that which directs the plaintiffs to assign. The assignment is not made a condition to the payment, nor does it appear that the arbitrators intended one act should be performed as the consideration, either in whole or in part, for the performance of the other. Looking at the award alone, we are not authorized to say that the arbitrators would not have directed the payment of the money unless there was to be an assignment of the claim against the Saratoga Company, nor that a greater sum was allowed to the plaintiffs in consequence of awarding an assignment. Nothing can be presumed for the purpose of overturning an award; on the contrary, it is familiar doctrine at the present day that every reasonable intendment should be made for the purpose of upholding an award. If the arbitrators, after properly disposing of the matter in controversy, went beyond the submission, and directed an assignment by the plaintiffs, this excess of authority will not destroy that which was well done within the submission. The argument for the defendants assumes every thing without proof. It is said that the Rensselaer and the Sara-toga companies both insured Adams against the same risk ; that the whole loss has by the award been charged on the defendants, when they were only liable for a rateable proportion ; and that the assignment of the claim against the Saratoga company was directed in consequence of-having charged the defendants with the whole loss. We cannot gather from the demurrer book that either of these allegations are well founded. The argument is open to a further remark. If the whole loss has been charged on the defendants, it is impossible to say that it has been done improperly. If it was a case of double insurance on the same risk, the assured might, unless there was something in the policy to control it, recover and collect the whole sum insured [131] from one of the companies, and that company would then be entitled to contribution from the other. Godin v. London Assurance Co. 1 Burr. 489. Thurston v. Koch, 4 Dall. 348. 1 Marsh. Ins. 146. 1 Phil. Ins. 326. Ellis’ Ins. and Ann. 13. But as the assured can in such cases have but one satisfaction, it was proper that the plaintiffs should assign the claim against the Saratoga company, and as that claim, on the facts assumed, stood connected with the matter submitted, the arbitrators did not exceed their authority in directing the assignment. In this view of the case the award is good in both its parts, and then of course the whole argument falls to the ground. But it is enough that we can see no necessary connection or dependence between that part of the award which directs the defendants to pay, and that which requires the plaintiffs to assign. It was not necessary that the plaintiffs should aver a tender or offer of performance on their part. If there is no necessary connection or dependence between the two parts of the award, and that part which directs the assignment is void, it follows of course that .the plaintiffs may sue without offering to assign. And if both parts of the award are valid, each party may, I think, have an action for the default of the other, in the same manner as upon independent covenants. This is not like the case of Huy v. Brown, 12 Wend. 591. None of the minor objections to the action are well taken. Judgment for plaintiffs.