Dalrymple v. Town of Whitingham

The opinion of the court was delivered by Isham, J. The special count in this declaration is upon an award of arbitrators. We learn from the case, that on the 16th of July, 1850, the selectmen of Whitingham laid outa public highway, over land owned by the plaintiff, and James S. Dalrymple, and also over land owned by the plaintiff and James S. Dalrymple, Jun. It appears that the plaintiff was authorized by those jointly interested with him in the lands, to make the submission, and take the award in his own name, so that no objections from that matter arise in the case. The statute authorizes the selectmen to take the land of individuals for that purpose, on paying therefor a just and adequate compensation. The 19 sect, of Comp. Stat. 164, provides, that if the selectmen and the persons interested in the land so taken, are unable to agree upon the amount of- compensation, or damages, they may refer the same, to be ascertained and determined by an award of arbitrators. The powers and duties of selectmen are given and limited by statute. They can submit to the consideration of arbitrators that matter only, which can properly be considered in ascertaining the damages sustained for taking the land, and for which they, as selectmen, are authorized to make [353] compensation. The arbitrators axe requiredrto discharge, in this particular, the duty which was imposed upon the selectmen, andin ascertaining the amount of damages, they' axe confined to such facts and considerations only, as could be taken into consideration by the selectmen. We see no objection to the submission; that is, the selectmen have submitted no matter to the arbitrators, but what, by the act, they were authorized to do. The selectmen being unable to agree, upon the amount of damages sustained by reason of laying out the road, they agreed to, and did .submit the matter to arbitration. This power is directly conferred upon them by statute. The question is therefore resolved into the inquiry, whether the arbitrators, in ascertaining the amount of damages, took into consideration matters not submitted to them, and which the selectmen had no power to submit. In the case of Commonwealth v. Norfolk, 5 Mass. 435, it was held “ that the value of the land taken, the expense of fencing against the road, and the damage done to the land remaining,” were the only matters proper to be taken into consideration. This rule was recognized in Livermore v. Jamaica, 23 Vt. 363. From the award of the arbitrators we perceive, that in reporting the sum of $198,75 as damages sustained, and for which the town were to make compensation, they allowed the sum of $40, for the discontinuance of the old road.. For this matter, no damages should have been allowed; as the plaintiff was not under the statute entitled to compensation, either from the selectmen, or under the award of the arbitrators. It is only when land is taken for public use, that compensation is to be made; not where land reverts to the owner, by a discontinuance of a public easement. This matter was therefore improperly allowed by the arbitrators, and was not within the submission. The allowance of the further sum of $50, for building a cross road for the plaintiff’s use, and entirely on his own land, was improperly made. This matter has no relation to the value of the land taken, nor to the value of the land remaining. It is merely a matter of personal convenience to the plaintiff, in the use of his farm, which the town are under no obligations to provide him with or make compensation for. The selectmen, under the act, could not have made any allowance or compensation to the plaintiff, for either of those matters, and therefore could not have legally sub [354] mitted them to arbitration. The remaining $108,75 was allowed for building a fence on the line of the new road, and was properly submitted and taken into consideration by the arbitrators; and for this a recovery should be had in this action, unless the award is rendered inoperative and void, in consequence of those matters having been considered and determined, which were not submitted to their consideration. The important inquiry in the case, therefore, arises, whether a recovery can be had in this suit for the matters properly allowed in the award, by disallowing those matters for which damages should not have been given, and for which the town are under no obligation to make compensation. As a general rule, an award may be good in part, and bad in part. It may be bad for one thing, and good for another. In 3 Phil. Evid. 1027, it is said that if the sub- “ mission be of a particular subject, and the award cover that, and “ another subject, yet, if there is no connection between the two, “ and they are in no wise dependent upon each other, it shall be “ enforced as to the one within the submission, and held void as to “ the other.” Baron v. Miller, 1 Cow. 117. Clement v. Dargin, 1 Greenl. 300. It appears from the exceptions, “ that the arbitrators made and verbally published their awar^d to the plaintiff, and the selectmen; and as a part of the award, and publication, the arbitrators stated that forty dollars was allowed for the discontinuance of the old road, and fifty dollars for building the cross road.” It is also stated, “ that the award was in fact made up in the manner and of the distinct sums so declared by the arbitrators.” The statement of the aggregate amount of the award by the arbitrators will not render the award entire and indivisible, when from the facts appearing on the face of the award, it appears to have been made up of distinct matters, having no connection with each other, and the amount allowed on each matter is capable of being definitely ascertained. Neither will such an effect be produced, because subsequently to publishing the award, the arbitrators gave to the selectmen, at their request, a written statement of the amount of the whole award, which was designed for their use, and not for the plaintiff, and never intended as a publication of the award. "We must regard the award, therefore, as having been verbally made, consisting of distinct matters and having no connection with each [355] other. Under such circumstances, the case falls within the rule above mentioned, and which is well sustained by the authorities. The plaintiff was, therefore, entitled to-recover the sum of $108,75, which was allowed by the arbitrators for building the fence along the line of the new road. If this had been an action of debt on bond for the performance of an award, perhaps, it would have been more proper to have set up that part of the award which is valid, and to have merely assigned a breach of that, as the non-performance of that part only, would constitute a breach of the bond. 2 Saund. 293, note 1.— Watson on Arbit. 135. But in this action of assumpsit, wethink, it was competent for the plaintiff to declare for the aggregate amount of the award, as the matters of which it was composed were expressly submitted by the plaintiff and the selectmen, and they agreed to abide by it.. But that agreement, as to some of the matters submitted, is not binding on the town. Those matters, therefore, which were improperly allowed by the arbitrators, and which can be definitely ascertained and computed, may be disallowed, and a recovery had for the balance-; the same as in an action on note, where its consideration consists of several distinct things, each of which is distinct from the others, and the precise amount of reduction to be made is a matter of'definite calculation. In such case, on a failure of a part of the consideration, the note will be reduced pro tanto, and a recovery will be allowed for the remainder. Paris v. Stone, 14 Pick. 198, 210. 2 Greenl. Evid. § 136. The declaration also contains the general counts, under which the plaintiff seeks to recover the amount of three town orders, two of which were payable to Mr. Follett or bearer, and the other to the plaintiff. The two orders given to Mr. Follett were disallowed by the court. In relation to the order dated Jan. 7,1851, we think it was improperly disallowed, and that the plaintiff was entitled to recover its amount. It has all the elements of negotiable paper, and when such orders are drawn, presented for payment; and payment refused, they are negotiable, and can be prosecuted in the name of the indorsee; and on common principles, a recovery can be had in assumpsit under the general counts, on all negotiable paper, whether the action is between the immediate parties to the instrument, or whether brought by the indorsee against the maker of the note, or acceptor of a bill. The order dated Feb [356] ruary 28, 1852, was properly disallowed, as no demand for payment was made previous to the commencement of this suit. A demand for payment on the town treasurer, is necessary by statute. We think there was error also, in the allowance of the order dated March 13,1851, upon which a recovery was had. When this order was delivered, it operated as a satisfaction of the amount for which it was given, so that no suit could be sustained on that matter. The remedy of the party is only upon the order itself, and no recovery can be had on the order, until it is presented to the town treasurer. As this order was never presented for payment, no recovery can be had on it, nor on the consideration for which it was given. Comp. Stat. 118 § 48, 49. 119 § 56. The result is, that the judgment of the County Court must be reversed, and the case remanded.