Callahan v. M'Alexander

ORMOND, J. — This arbitration was had, under the authority given by the statute for that purpose, to be found in Aikin’s Digest 38, by the seventh and concluding sections. The 5th and 6th assignments of error, are contradicted by the record; — it does sufficiently appear, that the oath which the law ■‘requires, was administered to the arbitrators, and that the plaintiff in error had notice of, and was present, when the award was made. But notwithstanding the disposition of this Gourt,to sus [370] ‘tain, and if possible to give effect, to this mode of settling cotrtroversies, it is impossible to sanction the judgment in this case. The demand made by the defendant in error, and all the proceedings-in the eatise show, that the claim was asserted against O'Neal the principal, a-nd not against the plaintiff in error, who was merely his agent. -It is true, that an agent may make himself responsible for his principal, but that is not a usual, and by iroimeans-a necessary consequence, of his assuming to act as an -agent;-which is-the position he occupies, from the statement of the defendant in error. There is no allegation, thsthe exceeded bis power, or had not-aufhorrly to 'bind O’Neal, his principal. Nothing'therefore is shown-on (he record, from which we can infer, that the demand was assertedagainst Callahan, individually. The strongest circumstance tending to that 'conclusion, is, his -signing-his own name to the submission;, but that is explained by the certificate-c/f-t-he justice, on the same paper; who states Ihát'üálldhanackno'wled'ged the execution of the bond as the agent df 'O'Neal’,-which bond, 'by the seventh-section of the act referred tó¡,'we‘find- an agent-may execute. But independent of these considerations, the award does net purport to-be-against Callahan. Stewards-a sum of money to 'the-defendant in error,-and1 we think it -very clear, that tbe court -•erred in-supposing that-it wns'awarded again-st -Callahan. In th-e absence of •mi'express assertion to that effect, we must -presume it was awarded against the person, who, on the record -appears to be alone responsible to- the defendant in error,, and against whom the charge was asserted. In the case of Price v. Kirley, at the last terra, we held, that no objection could be made in such a case -as this, which was not made in-the court below; unless the award did not decide the matter hi controvers}?. Here, as we understand the record, Callahan h'a'd not submitted any matter to the-arbitrators, but asthe agent-of O’Neal;, it was therefore error in the court to render judgment a;gainst him individually, and is within the opinion of the .court inithe ease just cited. -Let the judgment be reversed, and'the eau-se-remanded.