Young v. Shook

The opinion of the court was delivered by Kennedy, J. The only question about which there is any diffi [302] culty in this case is, whether the submission and award pleaded by the defendant, are shown thereby to have embraced the bond upon which the plaintiff has brought this action. A number of reasons have been set forth by the plaintiff as causes for his demurrer to the plea, but there is nothing in any of them. The most of them consist of matters of fact de-hors the record, upon which we can predicate nothing, as they are entirely foreign to and out of the case. Such as, that the submission was of a suit pending before a justice of the peace. Now that does not appear to be the case, from the terms of the submission as set out, nor from the plea, nor any other jpart of the record. JVihil habet forum ex scena. As to the exception, that the arbitrators exceeded the submission in awarding as to the payment of the costs, I do not consider it tenable. The submission of all matters in variance between the parties, was general, and the arbitrators under it, although there was no mention of the costs therein, had, as 1 conceive, a right to award as to them. Strang v. Ferguson, 14 Johns. 161. As to the exception, that there was a misjoinder of parties to the submission, and that the parties were not the same there with the parties to this suit, there is nothing very irregular in it, or more than might have been expected where, as in this case, the parties interested in matters about which they disputed, amicably, without the aid of counsel, agreed to submit all matters in variance between them, to the arbitrament of men mutually chosen by them for that purpose. Assuming as a fact, however, for the sake of the argument, that the bond in suit was the matter in variance which was submitted and arbitrated upon, there were certainly none made parties to the submission and reference, who were not directly interested in having the matter adjusted and settled. The bond is joint and several, and if it has not been paid, or discharged in some way, the estate of John Kemmerer, the deceased obligor, is liable for the payment of it, as well as Jacob Shook, the surviving obligor, against whom this suit is brought. In the submission then, there is John Young, the plaintiff in this action, of the one side, and Jacob Shook, the defendant, joined by David Kemmerer, one of the executors, but said to be administrator, and not executor of the deceased obligor, of the other side, If David Kemmerer, designating himself as the executor or administrator, and it is immaterial which for such purpose, of John Kemmerer, the deceased obligor, chose to join himself with Jacob Shook, the surviving obligor, in submitting the dispute which had arisen upon the bond, to judges of their own choosing, and to make himself jointly responsible with Jacob Shook for the result, I can perceive no legal objection to his doing so, nor can I conceive how it is possible it should avoid, or render the award a nullity, because he did do so. Neither was it necessary that all the administrators of the deceased obligor should have joined in the submission, or been consulted, in order to make it conclusive. See Morris v. Creach, 1 Lev. [303] 292. If the same obligation that is sued on here, was really the matter in contest, and submitted to the arbitrators, there were certainly no others parties to the arbitration, than 'those who were interested in the bond, and whose duty it was to have it settled; and it is unreasonable to say, that the same form must be observed in making parties to the submission, that might be necessary in bringing a suit on the bond in court, otherwise the award of the arbitrators shall be of no efficacy. It is further contended, upon the principles laid down in Blake’s Case, 6 Co. 44, that the arbitrament which is not under the seals of the arbitrators, cannot discharge the bond. Ut unumquodque dissolvi eo ligamine quo ligatum est. Although it has been said that arbitrament generally is not a good plea to debt upon a bond, yet it has been ruled that upon a submission of all matters in controversy, which included a bond, (and here it is of all matters in variance, which is the same,) an award declaring that the bond should be discharged, was a good plea. Morris, executor of Adams v. Creach, 2 Keb. 623. 659. S. C. 1 Lev. 292. 1 Com. Dig. tit. Accord, (D. 1.) page 128, Rose’s ed. But if the only matter in dispute between the parties were, whether a bond which the one holds against the other has been paid or not, I have no doubt but that they may mutually agree, even by parol, to submit it to the arbitrament of one, two or more persons, and the award when fairly made, will be binding and conclusive upon them. There is no rule of law nor principle of policy, which prohibits men from selecting such tribunal to pass upon and to decide their disputes in such cases, and, being so decided, the maxim expedit reipublicce ut sit finis litium applies. Ferrer’s Case, 6 Co. 7. And in the last place it is urged, that the defendant has not shown by his plea, that the bond in suit formed any part of the matters in. variance which were submitted, and that the arbitrators therefore, in awarding a discharge of the bond, exceeded their authority, and consequently the award, in that particular, is void. In answer to this, it is said by the defendant’s counsel, that for such omission in the plea, if it does exist, the plaintiff ought to have replied nul agardfait, and that he cannot avail himself of it on demurrer. Although the plaintiff might perhaps have taken advantage of this omission upon such replication, Macomb v. Wilber, 16 Johns. 227, yet, I apprehend, that is not the only mode by which he may do it. Ée might, I think, have done it by replying specially. Bean v. Farnam et al, 6 Pickering, 269. And I have no doubt, where the award is bad or insufficient from the party’s own showing, to answer his purpose, and it be made the foundation of a suit, or of a defence to a suit brought, the opposite party may take advantage of it by demurrer. 1 Saund. Rep. 327, a. (note e,) by Patteson and Williams, 327, b. note (3). Awards are certainly looked on much more favorably now than formerly, and may be said truly to have become great favourites with the legislature of this state, who have put it in the power of a party litigant, however unwilling his adversary may be, to have [304] almost any case whatever tried and decided by arbitrators; subject, however, to appeal therefrom, by either party, within a limited time, upon his paying all the costs accrued, and giving bail to prosecute his appeal. But still, there are certain fundamental principles which cannot be dispensed with, and must be regarded in order to render awards effectual; such as certainty, at least, to a common intent; that they shall be final, and that the matter awarded on shall have been within the terms of the submission. Archer v. Williamson, 2 Harris & Gill, 62. The arbitrators derive all their authority from the submission ; they must be confined to the subject-matter within.it, and pursue it strictly. Pratt v. Hackett, 6 Johns. 16. Solomons v. M‘Kinstry, 13 Johns. 27. And this they must do in point of form, as well as in point of substance. Henderson v. Williamson, 1 Stran. 116. 2 Saund. 62, and note (3.) Hence, in declaring upon an award, or in pleading it as a bar to an action brought, it becomes material to aver a mutual submission, and to state, at least in general terms, the subject-matter of it, so that it shall appear distinctly that that which is claimed by the party, and was awarded in his favour, came within the terms of the submission. 2 Saund. Rep. 61, h. and i. Then how is it in this case ? The defendant in his plea has shown, that the submission was “ of all matters in variance between the parties,” but there is no averment nor allegation in any form, that the writing obligatory in suit was the matter in variance or formed any part of it. Then again, it is further stated in the plea, that the arbitrators made their award “ of and concerning the premises, and of and concerning the said writing obligatory.” Now it is true that these latter words, “ of and concerning the said writing obligatory,” show clearly enough that the bond in suit was embraced in the award of the arbitrators, but unfortunately for the defendant, they also import most unequivocally, as it appears to me, that the bond or writing obligatory was no part of the “ premises,” which term refers to, and is substituted for the previous words, “ all matters in variance between the parties,” showing the extent of the submission ; because if the bond had been embraced within the words “ of and concerning the premises,” then the following words, “ and of and concerning the said writing obligatory,” would have been unnecessary. If those latter words had been omitted altogether, I am inclined to think that the want of an express averment, that the writing obligatory either was, or else formed a part of the matters in variance between the parties, it not being among the causes assigned for the demurrer, would not have been a substantial defect, and that it might have been supplied by inference which would have comported with all that was averred ; but from the manner in which the writing obligatory is here introduced into this plea, and connected with the preceding clause, “ of and concerning the premises,” by the copulative “ and,” it conveys the idea very distinctly, that the writing obiigatory which was awarded on, was additional matter to that em [305] braced within the immediately preceding term, “ premises.” Now the word “ premises” means, and indeed can mean nothing else, than “ all matters in variance between the parties,” so that the writing obligatory is stated by the defendant in his plea to have been awarded on by the arbitrators, over and above “ all matters in variance between the parties,” at the time of the submission. The award, therefore, as to this part of it, must be considered void, and consequently no bar to the plaintiff’s action. The judgment of the court below must therefore be reversed, and judgment entered oh the plea demurred to in favour of the plaintiff, and the record remanded that the cause may be tried on the other pleas. Judgment reversed, &c.