Shirley v. Shattuck

Dewey, J. This case has heretofore been before the court. and certain exceptions taken to the ruling of the court of [472] common pleas, as to the effect of a judgment of the court of New Hampshire, have been overruled. The case upon these exceptions is reported in 13 Met. 256. It is again brought before us, upon further exceptions taken upon a second trial. The first ground, upon which the last verdict is sought to be set aside, as presented upon the argument, is, that the arbitrators had no right, under the terms of the submission, to award costs; no particular authority to that effect being given them by the articles of submission. Applying the law of Massachusetts to the case, it seems well settled, that the arbitrators had no authority to award costs. Peters v. Peirce, 8 Mass. 398; Vose v. How, 13 Met. 243. The law of New Hampshire is otherwise ; Spofford v. Spofford, 10 N. H. 254; and if the submission, hearing and award were all transactions occurring in New Hampshire, the local law would properly apply to the case. There does not distinctly appear sufficient upon the papers accompanying the case, to show that this award was made in New Hampshire, although i appears highly probable from the residence of the parties that it was so. But assuming the fact to be otherwise, we are clearly of opinion, that the award is divisible; and that the part of it, which awards one half of the costs of the arbitration, to be paid to the plaintiff, may be rejected, and the other parts of the award held good. The precise sum thus awarded is named in the award, and may therefore be deducted from the whole sum awarded, without the least difficulty. The case presents no connection between the different parts of the award, which renders it objectionable to treat tire award as divisible. If, therefore, the arbitrators erred in awarding one half of the costs to be paid by the defendants, that would furnish no objection to the right of the plaintiff to maintain this action, deducting from the amount of the award the sum included therein for costs. 2. It is said that the award is bad for uncertainty, and the case of Houston v. Pollard, 9 Met. 164, is relied upon. But an inspection of that case, and of the case of Rider v. Fisher, 5 Scott, 86, there cited, will indicate at once the broad [473] distinction between these cases and the present. There the submission in terms required an award to be made as to sev eral distinct matters, but the arbitrators in their award had omitted to award as to some portion of them. In the present case, the submission was in the most general form, of all demands and controversies whatever, and an award of a certain sum of money, as due from the defendant to the plaintiff, may well be taken to be a full execution of the submission. Emery v. Hitchcock, 12 Wend. 156; Gray v. Gwennap, 1 B. & Ald. 106; Karthaus v. Ferrer, 1 Peters, 222. 3. The next point raised is as to the sufficiency of the demand made upon the defendant. The demand, it is said, was too large; embracing the entire award which of course included the costs awarded. The instructions upon this point were sufficiently favorable for the defendant. They assumed, that if the defendant was ready and willing to pay what was legally awarded to the plaintiff, but refused to pay any thing solely because more was demanded than was legally awarded, the demand would be insufficient. Generally speaking, a demand of a sum greater than that which may be due is still a good demand; and it is the duty of the other party to pay what is due. The case of a demand for a sum due, when non-payment of what is due would occasion a forfeiture, is different. Bradstreet v. Clark, 21 Pick. 389. But that differs from the general rule upon the subject of a demand. Exceptions overruled, and judgment on the verdict for the plaintiff.