Johnston v. Brackbill

The opinion of the court was delivered by Gibson, C. J. The plaintiff having joined issue on the plea of a submission and an award, will fail if the award shown be valid. The defendant relies on strict rules of pleading, without regard to the obvious justice of the case, and is therefore to be held to strict rules of law. The submission was general, “ of and concerning the differences then depending between them;” not of all matters in controversy between'them in this, or any other action. The award sets forth, that after hearing the parties, examining their several books of account, and taking into consideration a judgment bond to the plaintiff from the defendant, the arbitrators find a particular sum due to the former on that bond, without determining how much, or whether any .thing were due on the other subjects of difference submitted to, or examined by them. We may conjecture with a probable degree of certainty, that the sum awarded is the general balance; but that is not a necessary or even a natural conclusion. Else why refer it to this particular item of charge? The submission was not of the particular bond, but of the differences between the parties, and it seems from the introduction of their books of account, they had several. Now there is no severer rule than, that an award must be not only conveniently certain and mutual, but so final as to terminate all the differences submitted. I admit that this rule is relaxed here in some respects; but vve must remember that we are here on rules of pleading, which require greater certainty than is necessary by our ordinary practice.' Had the arbitrators awarded a general balance, we would be bound to suppose they had determined all the difference in controversy, and their award would have been mutual, final, and reasonably certain. But they have eluded this conclusion by specially awarding the balance of a particular item, without saying any thing of the rest: so that being bad in this respect they have made no award at all. It may be alleged that the defect, if any, appears on the face of the plea, and that the plaintiff ought therefore to have demurred. ‘But it does not appear by the award pleaded, that more than one subject of difference was laid before the arbitrators, so that it would be impossible to say all had not been decided; while by the award given in evidence, it appears there were several. The evidence therefore, did not support the plea. The award having been given in evidence, the plaintiff was allowed to prove that certain credits to which he supposed himself entitled, had been omitted by an oversight; and the court charged that an error by mere inadvertence of the arbitrators might still be corrected. Had the award been conclusive, there would have [370] Been error in the admission of the evidence, and the direction conse-quent on it. But it is- not easy to see how a vicious award should have a controlling influence on the evidence under the plea of payment. But, putting that matter aside, it appears from the verdict itself, which is exactly for the sum awarded, with the intervening interest, that those credits were in fact rejected.- It is said we' cannot follow incompetent evidence, or a misdirection into the jury box to ascertain its operation. The law is clearly otherwise. In Preston v. Harvey, 2 Hen. & Murf. 55, and Wolverton v. The Commonwealth, 7 Serg. & Rawle, 273, an error in the admission of in-competent evidence was held to be cured by conclusive proof of the fact, on the ground that the previous evidence could not have had an influence on the verdict. So in Faulcon v. Harris, 2 Hen. & Murf. 550, the admission of incompetent evidence which appeared by the verdict to have been inoperative, was held to be immaterial. And in Campbell’s Executors v. Colhoun’s Administrators, 1 Penn. Rep. 140, it was held that a misdirection in point of law might be cured by a finding on a distinct ground of fact to which the rule laid down was inapplicable. The principle stated by the chief justice, in Allen v. Rostain, 11 Serg. & Rawle, 374, is founded in justice as well as authority. Our business is not -with abstract principles, but injuries from the application of them. As therefore the error of the court in attempting to supply omissions in the award, did not vary the result, the judgment is unimpeachable. Judgment affirmed.