Bunnel v. Pinto

Swift, Ch. J. In this case, it appears, that the parties made a submission of their respective accounts, which were awarded upon. The plaintiff, in this action on book, claims, that he has a right to recover for certain articles charged on book, which accrued before the submission, but which were not actually laid before the arbitrators and awarded upon. It is clear, that the word <⅛ accounts” will include all book accounts, so that the question is, whether, when a man has made a submission which will comprehend book accounts, he can exhibit to the arbitrators a part of his books to be adjusted, and then, when an award is regularly made, bring an action of book debt to recover the articles omitted ? No case can be found to warrant this doctrine. A book account is an indivisible claim, as much as a promissory note ; and a party may as well pretend, that he kept back a part of his claim on a note, and then, after the award, bring a suit on the note, as he can in the case of a book account. If this should be allowed, men could never know whether their books were settled by arbitrament. One party might keep back a part of his account; and then, in an action to recover it, there would not only be a question whether he had a legal claim ; but also, whether it had been settled by the aw ard. This would be to make arbitrations an instrument, not to diminish, but to increase litigation. An award is as conclusive, on the matter included in the submission, as a judgment; and no one will say, that a second action can be brought on book, on pretence that the charges claimed were omitted in the former action. The authorities produced by the plaintiff, relate to distinct claims or matters in demand, and are not applicable to the present question : but the case of Wheeler v. Van Houten, 12 [434] Johns. Rep. 311. is directly in point, to shew that this actio» is not sustainable. It has been insisted on, that there is no averment in the plea, that this action is for the same matter, cause and thing, as the submission. But it is alleged, that the submission was subsequent to the time when the account shewn on oyer accrued, which is equivalent $ for this necessarily includes the same matter, cause and thing, for which this action is brought. As to that part of the award which respects Eunnel’s account for disbursements against the brig Despatch, it is a, direct decision of the arbitrators, to disallow and reject the claims, and notan exception of it from their award. Hosmeb, J. The validity of the defendant's plea depends on the question, whether a submission of the respective accounts of the parties, followed by an award of the arbitrators, is a bar to an item of account pre-existing the submission and award ? The purpose of the parties in submitting, is, (o have a final determination of every matter comprehended within the submission. Great hardships might result from a restriction of the award to the matters actually brought before the arbitrators, if the reference comprehended other demands. They might be voluntarily withheld by the party ; and if this ■were a reason to consider them as not affected by the award, one important object of the submission w ould be defeated. In the present case, the parties submitting intended, that their account should be finally adjusted. If we were to hold, that the subject of the plaintiff’s suit existed in force, because it was not brought before the arbitrators, the main purpose of the submission would be frustrated. Such a determination would facilitate fraud, and sanction negligence. The cases of Ravee v. Farmer, and Golightly v. Jellicoe, 4 Term Rep. 146, 147. do not sustain the ground assumed by the plaintiff! They merely decided, that a submission “ of all matters of difference,” does not comprise a matter not to difference, which was brought before the arbitrator. The expression of «* mailers in difference,” the court, probably, construed as synonimous with matters in actual controversy. Of this opinion was the Court in Webster v. Lee, 5 Mass. [435] Rep. 334. anil the submission of all demands, they considered as co-extensive. But, none of these decisions apply to the present case, in which the submission was of all accounts ; comprehending, beyond all question, the subject matter of the plaintiff's action. The case of Seddon v. Tutop, 6 Term Rep. 607. has no bearing on the question before us. A person is not bound, in an action at law, to unife different causes of action; and if he has done it, he may support one count, and omit to give evidence in relation to another. But, if persons will blend in one submission, numerous and distinct causes of action, they have agreed that the award shall be conclusive upon them. In the case of Wheeler v. Van Houten, 12 Johns. Rep. 311. it was determined, on a submission of all demands, that a demand, omitted by mistake to be brought before the arbitrators, was concluded by the award. To the same effect is the decision in Smith v. Johnson, 15 East 213. In this case, it was adjudged, “ that where all matters in difference are referred, the party, as to every matter included within the subject of such reference, ought to come prepared with hie whole case.” These determinations have my entire concurrence, and of consequence, in the decision complained of, I am of opinion, that there is no error. The other Judges were of the same opinion, except Gouid, J. who gave no opinion, having been absent, on account of indisposition, when the case was argued. Judgment affirmed.