Crosby v. Blanchard

The opinion of the court was delivered by Dunton, J. It is claimed by the defendant’s counsel in the argument, that this suit is upon an award which was made upon Sunday by the procurement of the plaintiff, and that the same is void, and therefore the plaintiff cannot recover. But whatever liability the defendant is under to the plaintiff, is upon the contract of April 20, 1876 ; and the agreement to pay the damage to the horse obtained by the plaintiff from the defendant, caused by the swelling of its leg, in case such swelling did not go down during the following summer, is .not wholly dependent upon Marcy’s estimating such damage. Smith v. Edmunds, 16 Vt. 687. [699] The agreement in question is somewhat analogous to a stipulation in an insurance policy that in case of loss or damage by fire, and the parties cannot agree upon the amount of the sum, one or more indifferent persons are to be chosen by the parties, in the manner therein provided, to estimate or fix the amount of such loss or damage. It has been repeatedly held that recovery can be had upon such a policy, without having, or offering to have, the loss or damage estimated or fixed in the manner therein provided. Goldston v. Osborn, 2 C. & P. 550; Robinson v. Insurance Co. 17 Me. 131; Sansum’s Digest of the Law of Insurance, 134, 135. Were the agreement in question to be construed as claimed by the defendant’s counsel, and had Marcy died before estimating the damages, or refused to have • anything to do with the matter, the plaintiff would be remediless. But Marcy was merely to determine the amount of such damage. He was not authorized to find any sum due from one party to the other, or to direct any payment to be made, or other act to be done, by either party. His decision, although conclusive upon the single question submitted to his determination, does not possess the ordinary characteristics of an award, and is not the substantive ground of this suit. Smith v. Edmunds, supra. The case shows that Marcy completed his estimate of the damage in question upon Thursday, but then declined to announce it, for the reason that both parties were not present. The mere fact that he announced it on the following Sunday, under the circumstances disclosed by the case, does not affect the validity of the contract. As well might it be claimed if A should go to B’s stable, in his absence, on Friday, and take therefrom a horse that B had for sale, and leave word with the servant in charge of the stable that he would pay B for the horse, not knowing what the price was, and on the following Sabbath B should make out and send to A a bill of the same, that A would not be liable to pay for it because such bill- was made out upon Sunday. « The defendant agreed to pay an additional sum for the horse he had of the plaintiff, unless a certain contingency happened, which did not, as a part of the price or consideration for the horse. This sum was the damage to the horse caused by the swelling of [700] its leg, and was susceptible of being estimated otherwise than as agreed ; but the fact that it was so estimated or fixed, and that Marcy made known what this sum was on Sunday, could not affect the validity of such agreement. Sargeant v. Butts, 21 Vt. 99; Blood v. Bates, 31 Vt. 147. If it were necessary for the defendant to have notice of Marcy’s estimate of the damage before the plaintiff could maintain a suit on said contract, although Marcy put his estimate of such damage upon paper on Sunday, this paper was not shown or delivered to the defendant, until a subsequent secular day. It has been held that a promissory note made upon Sunday but not delivered until a subsequent secular day, is valid; as it takes effect only from delivery. Lovejoy v. Whipple, 18 Vt. 379. Judgment affirmed.