Skillings v. Coolidge

Parker, C. J. The first error assigned in this case is, that the demand, upon which the submission to referees was made, was not signed by the parties demanding against the plaintiff in error. The said Coolidge &f Oliver were partners in trade, and a signing by one, of any contract touching the partnership concerns, not under seal, would bind both. This may be considered, therefore, a signing by both, if that were necessary to give validity to the submission. But the signing by one only of two partners, as he would have authority to submit for both, we think would sufficiently comply with the statute, (a) [45] The next error assigned is, that the demand annexed to the submission is not sufficiently particular to authorize the justice to take the acknowledgment of the parties, and to give jurisdiction to the referees. The statute, in requiring a particular demand, can intend nothing more than that a cause of action shall appear to exist, in order that a frivolous claim, or one which would be manifestly absurd, might not be the ground of the proceedings. In the case of Jones, in error, vs. Haclcer, (1) which was cited to support this objection to the proceedings, the demand was for 250 dollars, with out stating for what it was due; and for aught appearing upon the demand itself, it might have been made for some ridiculous, if not illegal, purpose. In the opinion given by the court, it was stated that the demand need not be as particular as a declaration; but that it must show the cause for which the money was * demanded. In the case at bar, the sum demanded is stated to be for the balance of accounts exhibited to the referees; meaning, as both parties have admitted, to he exhibited to them. We think this sufficiently particular; as we should if the demand had been for a sum of money for a note of hand, or bond, to be exhibited; which we think would not be objectionable. The other errors assigned all refer to a supposed irregularity in the report of the referees; and may be considered together, without prejudice to the several objections taken by the plaintiff in error. The referees, after determining that the sum of 13,000 dollars is due to Coolidge 8f Oliver, and awarding that the same shall be paid to them by Skillings, which would have been the proper termination of their report, proceed to consider the state of certain property belonging to Skillings, which had been lodged by him with Coolidge &f Oliver, as security for advances made him by them, all of which was under their control, but beyond sea, in a foreign country. They award that this property shall be sold by Coolidge &f Oliver, without expense to Skillings, and that he should be credited with the proceeds, and that the balance, deducting 13,000 dollars, should be paid over to Skillings. It is contended that this, part of the award is void for uncertainty; because it does not describe or specify the property so held, and because no means are provided by the referees, or by the law,‘by which this intention of the referees may be carried into effect. But it is not. necessary to consider the provision respecting the [46] property of Skillings, as a part of the report of the referees. The object of their jurisdiction was to ascertain the balance of the accounts between the parties. They were under no necessity of adjudicating upon the property of Skillings, which he had pledged, to secure the advances made to him by the defendants in error. If it was so pledged, as appears by the admission of the parties, Skillings could have made no demand against them for it, or for the proceeds, * while the balance of accounts remained against him ; and the referees could not lawfully have set it off against the demands of the defendants in error; their report would for that cause have been bad. It is proper, therefore, to consider every thing stated in the report touching this subject, as cautionary on the part of the referees to prevent the inference, which might have been drawn from the submission of all demands, that the property in the hands of the defendants in error had become theirs. This was intended for the security and benefit of Skillings, lest he might possibly be concluded by the report from reclaiming this property, when it should have answered its purpose of securing the sum he owed. Specifications of this sort are not unusual, and are often necessary to prevent disputes, which might arise in consequence of the general form of submission, and the effect of a report on all demands between the parties. We do not consider that tne right of Skillings in the property pledged is settled, or in any manner affected, by the report of the referees; nor that it was necessary for them to specify the amount of that property, or give any particular description of it His right is altogether independent, of that report; and he is, without doubt, in possession of evidence sufficient to enable him to establish his claim to the whole, whenever he shall be entitled, by payment of his debt, to reclaim it; or to the surplus of proceeds, whenever by the sales the defendants in error shall have received enough to satisfy their claims. • If any doubt exists of the validity of the report, it results from the manifest intention of the referees, that the defendants in error should not coerce payment of the sum awarded to them, but that they should dispose of the property committed to them in pledge, and pass the proceeds to the credit of Skillings on account of the balance found due from him. It may have been perfectly equitable that he should have this indulgence ; for the relations between the parties may have been such, as to render it unjust that his other property or * his person should be exposed for this debt, until the termination of the adventures upon the property which his creditors received in pledge; and we are to '•<dieve that justifiable motives induced the referees to make the [47] provision for the benefit of Skillings. If, therefore, an execution of the judgment was necessary to give complete effect to it, we should apprehend that the judgment ought to be avoided, because of the prejudice to Skillings, contrary to the intention of the referees. But the statute does not require that an execution should issue, and it would have been perfectly proper in the court, which rendered the judgment, to have inhibited an execution, until a special order therefor. For this is not one of those civil actions, in which the party recovering judgment is entitled to his execution, at all events, within twenty-four hours after judgment. In the case of The Commonwealth vs. The Pejepscut Proprietors, (2) it is stated by Judge Sedgwick, that if the referees make a conditional report, or provide that the sum they find due shall be paid at a future day, no execution will issue; but that an action of debt on the judgment will lie, when the time of payment has arrived, or, perhaps, an attachment to compel a performance of the report or award. It is true, that nothing appears upon this record, by which the judgment creditors would be prevented from suing out their execution ; but if they do it contrary to the manifest intent of the referees, a remedy may be had by audita querela. If it should happen that the proceeds of the property, under the control of the defendants in error, should be insufficient to satisfy them for the amount of their judgment, they may have their action of debt thereon ; and the plaintiff in error will be entitled, under a plea of payment, to avail himself of whatever sums they may have received from his property. Upon the whole, we see no cause for reversing the judgment, as no formal or substantial error exists, and as the rights of the parties are entirely protected by * the doings of the referees, on which the judgment is founded. Judgment affirmed. Footnotes [(a)] [According to the authorities, one partner has not authority to bind his copartners by a submission, even of matters arising out of the common business. — Stead vs. Salt, 3 Bing. 101—500.—-4 J. B. Moore, 340. — Strangford vs. Green, 2 Mod. 228. — Mudy vs. Osain, Litt. Rep. 30. — Lumsden vs. Gordon, Stark. 195.—Morr. 14567 [45] Antram. vs. Chase, 15 East, 209. — Gow. Partn. 66.— Coll. 239—261. — 2 Chitty s Prac. 77. — Com. Dig. Abr. D. 2. —2 Bell's Com. 618, 5th ed. — Adams vs. Bankart, 1 Crompt. Mees & Ros. 681. — Karthans vs. Farrar, 1 Peter's Rep. 222, 228. — Buchanan vs. Curry, 19 Johns. 137. — 3 Kent. p.49,4thed,— Story on Part. 169. — Ed.] (1) 5 Mass. Rep. 264. [(2)] 7 Mass Rep. 399.