Jesse v. Cater

WALKER, J. The appellant, who was the plaintiff below, demurred separately to the defendants’ two pleas. The demurrers were overruled; and, the plaintiff declining to further plead, a judgment was rendered for- the defendant. If either of the pleas, the demurrers to which were overruled, averred facts constituting a defense to the action, the judgment of the court below must be affirmed. Both the pleas go to the entire action; and therefore the plaintiff has not been prejudiced by the erroneous overruling the demurrer to one of the pleas, if the other was good. — See the cases of Firemen’s Ins. Co. v. Cochran & Co'., 27 Ala. 228; and The State v. Brantley, 27 Ala. 44. We proceed to consider the sufficiency of the first of defendants’ two pleas; and if the conclusion is attained, that it interposed a valid defense to the entire action, the judgment of the court below tnay be affirmed, without an examination of the second plea, as its deficiency would not change the result. This case has once before been in this court. — See 25 Ala. 351. The question was then, as it is now, upon the sufficiency of a plea. The plea then passed upon by this court set up [481] an award, without any additional averment. This court adjudged that plea, resting the defense upon the award alone, as defective. Furthermore, the learned judge who delivered . the opinion indicates, in dicta, what additional matter would be requisite to supply the deficiency of the plea. The opinion asserts, in effect, not only that the award was not of itself a defense to the suit, but that it could not be-unless pleaded with an allegation of performance, or of an offer to perform, or at least of a readiness to perform, the duties imposed by the award upon the pleader. Although we might be disposed •to doubt the correctness of the former decision of this court, it is obligatory upon us, so far as the question then before the court is concerned; but we are not necessarily bound to literally carry out the dicta pertaining to questions not before the court. . To the decision of the court, as to the sufficiency of the plea then before it, we yield implicit obedience; but we aré at liberty to look beyond the mere letter of the opinion as to the additional averment necessary to make out the defense, and to regard it as authority according to its spirit- and intention. While the position is taken, in general terms, that performance, or an offer to perform, would be necessary to make the award available as a defense, we do not think it was. intended to exclude the idea that there could be other facts which might have the same effect. — Sibbald v. The United States, 12 Peters, 488; 26 Ala. 647; 25 ib. 199; 23 ib. 609; 15 ib. 232; 2 ib. 522; 1 Porter, 313; 4 S. & P. 59. We think that the averment of a sufficient legal excuse for the omission to perform, or to offer to perform, the obligations imposed by the award upon the defendant, would have had the same effect, when pleaded in connection with the award, as would the averment of performance, or of an offer to perform; and we think this court would have so decided, in its former opinion, if the question had been presented. The submission to arbitration, which is set forth in the plea, contains an agreement, that the award of the arbitrators, made in pursuance to the contract of submission, “ should terminate and forever decide all matters of controversy, at law or in equity,” in relation to the livery-stable therein named. The agreement is sufficiently comprehensive to include, as one of the matters to be settled by the award, the right of [482] action at law upon the injunction bond. It .may be, that that right of action was not embraced within the subject-matter to be directly passed'upon by the arbitrators, and was collateral to it; nevertheless the award was to have the effect of settling it. It follows, that the plaintiff (Jesse) could have maintained no action upon the injunction bond, after the award in pursuance to the contract of reference, unless that award was not binding upon. him. Following the previous decision of this court, we hold, that the award, standing by itself, would not be effectual against Jesse. Wc also follow that opinion, and say, that performance, or an offer to perform by Mrs. Cater, would have made the award operative against Jesse; and that either of those facts,.when pleaded in connection with the award,-would have made a good defense to this action. Meeting the question presented by.the plea now before ns, we also decide that the averment of a good and lawful excuse for the omission to perform, or to offer to perform, on Mrs. Cater’s part, would be equivalent, in its effect, to an averment of either of those omitted acts. The matter alleged in the plea now under consideration, which was not in the plea heretofore passed upon, is, that no lawful title to the lot, to be exchanged by Jesse with Mrs. Cater, was in Jesse, and that it was in another person, at the time of making the award, and has since so remained. This, we think, constitutes a sufficient and legal excuse for the omission of performance, or of an offer of perfonnance by Mrs. Cater; The duties imposed were to be simultaneously performed. The acts to be done were intended to be concurrent, — Hay v. Brown, 12 Wend. 592. The law would not require Mrs. Cater to go through the useless ceremonial of offering to comply on her part, when Jesse was totally unable to comply. It was Jesse’s duty, when the award of the arbitrators was rendered, if he did not have a title to the lot, to procure it, and place himself in a- condition to perform the duties imposed upon him. It was not Mrs. Cater’s duty to pursue him with requests to perform that duty. — Griggs v. Woodruff, 14 Ala. 20; Allen v. Green, 19 Ala. 34. A different decision would permit Jesse, after agreeing that the award should settle the matter of controversy, to avoid its effect, if he deemed it unfavorable to himself, by [483] .forbearing to place himself in a condition to perform the obligations imposed. It would be to allow him to speculate upon the chances of an award favorable to him, and then avail himself of his own wrong as the means of rendering it inoperative against him. The arbitrators, in making the award that a fee-simple title should be made, are not presumed to have intended the making of a deed, without regard to title. Mrs. Cater had a right, under the award, not merely to a conveyance, but to a good title. — Hunter v. O’Neil, 12 Ala. 36; Judson v. Wass, 11 Johns. 584; Tucker v. Woods, 12 ib. 190. For the appellant it is contended, that the question whether Jesse had title to the lot was adjudicated by the arbitrators, and that Mrs. Cater is estopped from setting up the contrary. The judgment of the arbitrators is not that Jesse has title to the lot, but that he “ can and do” make title to it. The language used in the award, does not necessarily imply that the title was in Jesse at the time of the award, or that lie then had the present ability to make title. A judgment can of itself only operate as an estoppel as to matters necessarily within its scope. The judgment of the arbitrators, which was confirmed by the court, is not inconsistent with the idea, that Jesse did not actually have title, but could make title at a future time, because he could procure it. The averment that Jesse was without title, was not necessarily in conflict with the decision of the arbitrators, and therefore Mrs. Cater was not estopped from pleading it. — McCravy v. Remson, 19 Ala. 433; Chamberlain v. Gaillard, 26 ib. 504; Whittick v. Traun, 25 ib. 317. An application of the principles which are laid down in this opinion, sustains the defendant’s first plea, and therefore the judgment of the circuit court is affirmed.