Strong v. Beroujon

PARSONS, J. The replication states the submission and the award. 'The demurrer to the replication should have been sustained, if .there was a fatal defect in the submission or the award, apparent on their face. The plaintiff was a party in his own right and as guardian of the heirs of Joseph Lemonier, deceased, and the controversy submitted was in reference to certain property .embraced in a lease, which is described, and to ' its stipulations. By the award, as stated in the replication and-set out on oyer, the defendant was required to'deliver to the' [173] plaintiff the possession of some real estate which is described, and to pay to the latter $220, as the balance due to him, after deducting the value of the improvements from the amount due to the plaintiff, for rent of the premises, and for the non-fulfilment by the defendant of the terms of the lease. It is contended that it is apparent the arbitrators took matters into consideration that were not submitted, but we think this does not appear. It does not appear that the property to be surrendered was not the same which was in part the matter of controversy that was submitted, for it was the same, so far as appears, that was embraced in the lease: And as the stipulations of the lease were also referred, the money aw'arded to be paid was a consequence of that, and within the submission, so far as appears. The demands for rents, it is to be presumed, arose under the stipulations of the lease. The rule of law now is to intend that the award is made “ of and upon the premises,” unless the contrary appear. — Gray v. Gwinnap, 1 Barn. & Ald. 106; Watson on Arb. & Aw. 176, and cases cited. 2. It is contended that the award is uncertain, because it does not show what was awarded to the plaintiff in his own right and what as guardian. This was not required by the submission, but if it should ever be a material question, in the event of a future suit about the same matters, evidence will be admissible to prove it — in re Brown & Croydon Canal Co., 9 Adol. & Ellis, 522. 3. It is contended that the award was not mutual, because nothing wras required to be done by Strong. But it appears that the arbitrators made an allowance to the defendant for the improvements, which diminished the plaintiff’s demands. An award, however, is not necessarily wanting in mutuality, because nothing is required of one of the parties. 4. It is further insisted that there is a want of mutuality, because the claims of infants were submitted, and they are not bound by the award, and for this the counsel relies on Biddle v. Dowse, 6 Barn. & Cress. 255. There are several circumstances to distinguish that case from this, but it is sufficient to mention one of them. Some of the parties to the submission in that case were infants, who had been parties to a suit by their next friend. The matters for which the suit was brought were submitted to arbitrators. This was done under order of h [174] court, by consent of the attornies of the parties in the suit. It was held that no sufficient authority to refer on behalf of the infant plaintiffs was shown, the attornies having no such authority, and that therefore the submission was not mutual, and consequently the award was bad. It did not appear in that case that the next friends of the infants consented to the reference. If there had been consent, even by the next friend, the court would probably have sustained the submission, for Abbott, Chief Justice, observed in the case: “If in fact the next friends of the infants did take this obligation upon themselves, that matter ought to have been specially avered and shown” by the declaration, for it appeared by the declaration that the order of reference was made by consent of the attornies. The court therefore held that the submission was not mutual. The true rule is laid down in Watson on Arb. & Aw. 68, thus: “Although an infant cannot submit, his guardian or other person may submit for him, and the person submitting shall be bound by the award in the ordinary way, as one man is bound when he binds himself for the acts of another.” In the case at bar, the submission was made by the guardian himself, which distinguishes this case from that of Biddle v. Dowse. The demurrer to the replication was therefore properly overruled, and consequently the demurrer to the rejoinder cannot fall back upon the replication, as being the first defective part of the pleadings. The counsel for the plaintiff contended that if the replication is bad (which, however, he denied) the demurrer to the rejoinder could not, under the circumstances of this case, be applied to the replication, or to the submission or award as part of the replication ; but it is not necessary for us to decide that question. 5. The defendant’s demurrer to the replication having been overruled, he rejoined that the arbitrators acted with gross partiality in favor of the plaintiff, and to this rejoinder the plaintiff demurred, and his demurrer was overruled, and that is assigned as error. The question is, whether the matter stated in the rejoinder is cognizable in the courts of common law. If the award had been taken taken under the statute, the facts stated in the rejoinder would have been sufficient, in the court of law, to set aside the award, according to the statute. — Clay’s Dig. 50. But the [175] submission and award in this case were independent of the statute, and they were made under no rule or order of court, nor was there any agreement that they should be made a rule of court. This distinguishes the present ease from the eases in the books in which the courts of law have summarily relieved parties against awards that were brought about by corruption or misconduct of the arbitrators. This case is within the general rule, “ that corruption or misconduct in the arbitrators is no defence to any action whatever, brought for the non-performance ©f the award,” the remedy being in equity. — Watson on Arb. & Aw. 212-16. Judge Spence observed, in Cranston v. Kenny’s Ex’r, 9 Johns. R. 212, “Under the statute,and when the submission is agreed to be made a rule of court, power is given to the courts of common law jurisdiction to set aside any arbitration, or umpirage, procured by corruption or undue means, and this is the limit of the authority of those courts.” This is the general doctrine stated in. the books, and we have not been refered to a single case to the contrary, in reference to such a case as this. The defendant’s counsel, however, refered us to several cases which he considered analogous, and ably controverted the rule upon which we rely, as having commenced in error, and as being opposed to the equity of our statute and to the principle of other cases, which are, however, not, as he admitted, precisely in point. But after full consideration, we feel bound to adhere to what we think is the well established rule in the present case, and consequently we think the rejoinder was bad. The judgment is thérefore reversed and the cause is remanded.