Hawley v. Hodge

The opinion of the court was delivered by Williams, Ch. J. Several questions have been made in the argument, which do -not arise from the case. The action was founded on a submission of .certain controversies between the plaintiff and defendant to an arbitrator. The defendant revoked, and the county court found and assessed the damages, which the plaintiff had sustained thereby. The several questions, however, which were made, have been considered; and the result is, that we see nothing erroneous in the proceedings of the county court. It appears that the submission was in writing — the revocation was not in writing. It is'not necessary for us to say whether the arbitrator would have been justified in proceeding with the arbitration, without a written revocation. .The defendant made a parol revocation, and his power to do so was not questioned by the arbitrator, or the other party at the time. The arbitrator declined proceeding, and entered on the submission, that the defendant, Hodge, had revoked the power of the arbitrator. The defendant cannot now dispute the revocation, or say that he should haye revoked in a different manner. Again, as to the costs, no question could arise on the trial as to those, except on the plea of tender. There is ho’wever no question that it is incident to' the authority given to an arbitrator in a general submission, where no mention is made of cost, to award concerning the cost of the arbitration. Here there was no award. The only way in which this question of cost can now be raised, is on the inquiry, whether the sum tendered by the defendant, and received by the plaintiff, was the full amount to which he was entitled. The county court have found the damages to be greater than the sum tendered; of course, the tender ceases to be of any consequence. As to the damages, the rule is, that where a ■party revokes, he must pay all damages which the other party has sustained. This would of course include the cost of the suit discontinued, the cost and expenses which the party had been subjected to in preparing for trial, which he would not have incurred, or been subjected to, but for the submission, and which he cannot recover in any other way. These have been found by the county court, and exceed the sum tendered. The judgment of the county court is affirmed.