Briggs v. Brewster

[102] The opinion of the court was delivered by Redfield, J. The first question in this case is, whether the plaintiff’s account was barred by the submission and award between the parties on the twenty first of March, 1846. The auditors say, that some portion of it, (meaning that allowed in this action,) was not embraced in the submission, nor presented to or passed upon by the arbitrators. The submission is not under seal, but in writing, and specifies, that “ difficulties and disagreements ” had arisen “ in relation to our deal, and the management of the farm the past season, and in relation to two hogs now on the farm,” — “to end all which difficulties and disagreements, the same” are submitted. The arbitrators find this plaintiff indebted in $24,70, “ as balance of the accounts presented,” with certain other specific awards. It does not appear, that there is any thing in the case to show, that the submission included the plaintiff’s charge; and the award clearly did not. An award will ordinarily have no greater effect, than a judgment. It will only bar what is adjudged, — unless, perhaps, if part of one entire transaction is submitted and adjudicated, it will bar other portions of the same transaction, not presented before the court, or arbitrators. Possibly, too, if a submission be general, of all demands, and under seal, and an award follow, it might be esteemed equal to a release under seal, or a covenant not to bring subsequent suits. But upon none of these grounds could the plaintiff’s charge for a writ be esteemed as barred. The case of Seddon v. Tutop, 6 T. R. 607, goes on this ground. Raner v. Farmer, 4 T. R. 146, is the case of a submission of all matters in difference. The cases, indeed, are all one way upon this point. Buck v. Buck, 2 Vt. 417. As to that item of the defendant’s account, which the auditors have allowed, there seems to us more difficulty. The facts found by the auditors, and the form of allowing the account, “ one half of a sheep,” when they say the parties owned the sheep jointly and agreed that each might take what he wished and account for any excess, and that the plaintiff took one sheep more than the defendant, all show very clearly, that this was the joint property of the parties, and the proper remedy an action of account. The agreement in the case is no more, than what the law always implies in such cases, or than what existed, in terms, in the case of Scott v. [103] Lance, 21 Vt. 507. And in this respect the case does not seem to us different from the case of Albee v. Fairbanks, 10 Vt. 314, and many other cases decided by this court, — unless, perhaps, the fact, that it is a single item, will create a difference. . If the facts in the case were, that the parties had settled all the other items of the joint account, and by consent omitted this, with the agreement, that it should be subsequently adjusted between the parties, in their dealings, — or perhaps without any express agreement of that kind, — we might properly enough,, perhaps, regard it as transferred, by consent of the parties, from the general account of the joint dealing, in regard to the farm, to the general dealings between the parties. But nothing of that kind exists. The arbitration did indeed merge all the rest of the account; and the account being an entire matter, the legal effect must be to bar this item also, upon general principles, which I have no doubt are clearly and strictly applicable to this subject; — or, if it did not have this effect, it left it, where it was before, matter of joint account between the parties. Judgment reversed, and judgment for plaintiff, for the amount allowed on his account. It was referred to one of the auditors to tax the costs in this case according to the following directions: — To ascertain, 1. All the costs, which have accrued on the part of the plaintiff in the litigation of the item, for which he has obtained judgment, — including writ, service, court fees, and term and attorney fees, with the fair proportion of auditors’ fees paid on account of that particular litigation ; — 2. How much costs, in addition, accrued to the plaintiff in litigating the defendant’s account; — 3. How much costs have accrued to the defendant in litigation of those items of the plaintiff’s account, which have finally been disallowed, — including the proper proportion of auditor’s fees paid on that account; — The parties to be heard before the court, upon the coming in of the report, upon all questions arising upon the same.