Robinson v. Morse

The opinion of the court was delivered by Redeield, Ch. J. It depends' a good deal upon construction what the issue in this case is. The parties in drawing it up seem to have followed a good deal the phraseology of the submission. This in its preamble recites that “ whereas, a controversy is now existing concerning the settlement of book accounts and all other deal and disputes between them, the said parties.” And the submission is “ of all said controversies which we cannot settle ourselves, if any there be.” These very terms are introduced into the pleadings. And the issue seems to be, whether matters of deal, not in controversy, were agreed to be included in the award, and so are barred because they are not included. It does not seem to us that upon any fair construction, either of the pleadings or the submission, (which is not otherwise in the case than as it is identical with the pleadings,) it can be said, that matters of deal not in controversy were to be submitted to the arbitrators, and included in the award. There might be controversy about settling all the deal, and still the controversy not extend to all. If there were any controversy about any portion of the deal, there would be a controversy which hindered the settlement of all the deal, and that is all that seems to be implied in the submission. [408] The terms of the submission are “ all controversies ” in the first instance. Then follows an exception from the existing controversies of all such as they could themselves settle, that is, we suppose, such as they should settle before the hearing. This exception shows very clearly that no settled matters of deal, or even such as the parties should settle before the hearing, should come before the arbitrators. These notes, then, according to the finding of the court, were not within the pleadings, or submission, and are not barred, upon any view of the law. We have not undertaken to dissect the pleadings minutely, because it is not claimed, upon either side, that they include these notes, unless the submission does, and on one side it is claimed that the pleadings do not include as much as the submission. It is possible there might, in case of doubtful construction, be something made of that argument, as in pleadings the stronger construction is against the pleader, inasmuch as it was in his power to render it more specific, if he dared incur the hazard of variance. And if he chose not to do it, there might fairly arise a presumption that he thought it not safe to give it that construction in terms, or he would have done so. But it did not become necessary to go into this. In regard to the law upon this somewhat vexed subject, we have no occasion to say more than to refer to Briggs v. Brewster, 23 Vt. 100; Robinson v. Morse, 26 Vt. 392. Judgment reversed. Case remanded.'