Whitcomb v. Preston

The opinion of the court was delivered by Williams Ch. J. This is an action on an award. The defendant has pleaded two several pleas in bar, which are demurred to. The questions which legitimately arise in this case are few and not difficult. The first inquiry is, whether the award is bad for uncertainty ? We think it is sufficiently certain. The Cox farm, and the interest which the plaintiff held therein, by the deed of Martin, can be easily ascertained and rendered certain. The next thing to be decided is, the construction to be put upon the award. This award is, that the plaintiff should execute a good authentic deed of conveyance of all the lands which the plaintiff held by a deed of conveyance from Samuel Martin, without saying how much he held; and the meaning of it is, that he should convey all, more or less, which he held by that deed, and this would appear to have been the subject in controversy which was submitted. An award that a man should execute a good authentic deed of land, or that he should convey the land, intends the same thing, in my view, and would not be fulfilled by executing a deed, if the title had been conveyed away after the award and before giving the deed. The plaintiff avers that he has offered such a deed as, in the opinion which we have expressed, the award required, him to make, and also that he offered to deliver up the possession. If he had not done this he could not recover on this declaration. The declaration counts upon an award which is not objectionable, and contains all the averments necessary to establish a right of action in the plaintiff. These views were entertained by the court at the last term, when the plaintiff had [67] leave to amend his declaration, and the construction of the award now expressed was adopted when the case was before us at the suit of Preston v. Whitcomb, 11 Vt. R. 47. The declaration being good, the question then arises, whether the pleas present a good defence. The first plea in bar adopts a different construction of the award from what we consider the true one. In that plea, the award is considered as an award that Whitcomb should convey the whole tract of land described in Martin’s deed. The plea also sets forth a want of title, and an adverse possession of part of the land. On the construction which we have adopted, the plea is not a bar, as it does not deny that the plaintiff has offered a deed of what lands he held by the deed from Martin, and has offered to give possession thereof to the defendant. The second plea is objectionable on the same account. It It does not deny that the plaintiff held some interest, or a title to part of the land described in Martin’s deed. It is alleged, in this plea, that the question of the title to the land was not put in issue, nor adjudicated by the arbitrators. The importance of this allegation is not perceived. The submission, it appears, was of a controversy concerning the land, as well as concerning some hay. If the title was undisputed, or if no question of title was raised, it is to be presumed the parties knew the extent of the plaintiff’s right, derived from the deed of Martin. Nor are we to presume the arbitrators were unacquainted with it. This would confirm our views as to the ponstruction of the award, that the only subject on which the arbitrators were to pass, and which was to be affected by their decision, was the interest which was holden by the Martin deed. Both pleas are also liable to the objection taken by the special demurrer. They amount to no more than a traverse of the performance by the plaintiff, which he had averred in his declaration, and which he would have been bound to prove on the general issue. The judgment of the court is, that the pleas in bar are insufficient, and that the plaintiff recover the amount of the award with interest. The sum of five hundred dollars, named in the submission, cannot be considered as stipulated damages, as the act to be performed by the defendant was the payment of a sum of money.