Jessee v. Cater

LIGON, J. — 1. We think it clear that the award set out in the first plea in this case was never intended to be final, as to the matters involved in the chancery suit between the parties, until the things required to be done by it were performed, or offered to be performed by the parties respectively. The matters settled by the award are merely collateral to the controversy on which the reference was made, and the arbitrators go no further than to require the parties to make conveyances to each other on certain terms set forth in the award. In such cases, a plea which sets up and insists on the award, as a bar to an action founded on or growing out of matters connected with the proceedings or issues involved in the suit on which the reference was made, should aver performance on the part of the person pleading it; or, at the least, a readiness to perform. — Clapcott v. Davy, 1 Ld. Ray. 611; Freeman v. Burnard, ib. 246; Billings on Awards, 135, 293. The performance by Mrs. Cater is a condition precedent to her claiming any rights under the award of the arbitrators, and as such must be averred in her plea before it will be a bar to the suit on the bond for injunction, brought by Jessee for a breach of its condition. As the first plea in this record [353] contains no such averment, it is therefore bad, and the demurrer to it should have been sustained. This award differs from that in the case of McAlpin v. May, 1 Stew. 520. The arbitrators in that case acted directly upon the matters in controversy, ascertained the balance due to the plaintiff, and unconditionally awarded its payment. It yras full and final in its character; and in such cases, the party pleading it need not aver performance. 2. The charge of the court below was also erroneous. It assumes this award to be final, without any performance of its requirements by either party. We think differently, and hold that the conveyances and the payment of the money awarded, required to be made by its terms, are conditions precedent to its becoming final. Let the judgment be reversed, and the cause remanded.