Trescott v. Baker

The opinion of the court was delivered by Redfield, Ch. J. I. The first error alleged against the proceedings, in the court below, is in allowing an amendment by which the plaintiff was allowed to introduce a count declaring specially upon the award, the original declaration containing only the general counts. By the English practice, it would seem that, in an action upon the award, the party is allowed to declare upon the original cause of action, and treat the award as a liquidation of the matter merely, where the submission is by parol, as in the present case. This is the rule, too, in regard to an account stated. It is no merger of the original cause of action : and, perhaps, there is no violation of principle in treating a parol award as nothing more than an account stated. If so, the action might have been maintained without the amendment. But the objection to any amendment of the declaration is not properly that it introduces anew cause of action, for, strictly speaking, every amendment which is important is supposed to introduce a cause of action, upon which the plaintiff could not recover without the amendment, and so it is a cause of action not sufficiently set forth in the original declaration, and so, in a sense, new. But every amended count, it has been said, should be upon the cause of action intended to have been declared upon. And no question is made that the amendment comes within this rule. And this is the approved rule as laid down in the modern books of practice, so that we are satisfied the amendment comes within the discretion of the county court to allow. II. The principal question arises upon the effect of the sub [464] mission and award. It seems to be the tendency of the recent cases, perhaps, to hold that a submission of all demands, and an award, although both the submission and award be by parol, will bar all past dealings between the parties. But this is a rule of policy merely, and not founded upon any obvious principle or very clearly established course of argument or reasoning; Briggs v. Brewster, 23 Vt. 100; Robinson v. Morse, 26 Vt. 392; S. C. 19 Law Reporter 768 (ante p. 404.) In the last case, when it last came before this court, in March last, it was held that a submission reciting that “ whereas, there are controversies about the settlement of all our deal, and agreeing to submit all such controversies which we cannot settle ourselves,” did not include matters of deal between the parties, about which there was no controversy. The very idea of a submission and award presupposes a matter in dispute, and if the parties, in terms, agree to submit all their deal, and, purposely and by mutual consent, omit to bring forward matters about which there is no controversy, it would cartainly be a remarkable construction to adopt, that the claims were thereby effectually barred and irretrievably lost. This would be giving a submission and award an operation altogether beyond that of the judgment of a court of competent jurisdiction. And where such omissions are made by mutual consent, it would no doubt be regarded within the power of the parties to so modify the submission. And if done by mistake, it is questionable how far there is any necessity of driving the party into a court of equity to correct the mistake. It is no doubt true that upon a general submission of all deal, and a general award, it must be regarded as, prima facie, a bar of all claims. And where one party voluntarily withholds claims, he ought, perhaps, to be held to have abandoned them. But in the present case it is very obvious to us that the second submission had not, in terms or in intention, any necessary reference to the mere money advances made by the parties, in the nature of capital, and which, but a few days before this submission, had been submitted to an arbitrator and awarded upon. The last submission recites, in its preamble, that “ whereas, differences have arisen and are now pending between E. C. B. on the one [465] part and J. T. on the other,” then providing certain property shall be taken by one party and certain other property by the other, concludes, “ and all differences and accounts concerning the copartnership,” &c. This, we think, must refer exclusively to unsettled accounts, and could have had no reference to an award already made upon a portion of those accounts. Nor do we think it could have been with the contemplation of the parties, in making the second submission, that there should have been a reexamination of the same accounts before settled, or that it was intended to have the balance found due this plaintiff adjusted in the second award, although this is more supposable, but, under all the surrounding circumstances, scarcely probable. The case is very much like that of Robinson v. Morse, when last before the court.