Chittenden v. Woodbury

The opinion of the court was delivered by Redfield, J. This is an action on a note. The defendant pleads in bar of the action that the plaintiff’s claim had been settled and discharged by a composition deed in which the plaintiff and the other creditors of the defendant had covenanted under seal with the defendant to discharge this claim for a certain percentage, which had been paid to the plaintiff and accepted by him. I. The plaintiff claims that the deed is inoperative, because the creditors of a solvent-firm of which defendant was a member, did not sign the deed. We think the contract did not require them to sign the deed. Besides, there is no provision in the contract that the creditors should be absolved from the contract, if all the creditors did not sign the deed. The covenant on the part of the creditors is that “ we, the subscribers, creditors of the said Joel Woodbury . . do hereby severally promise, covenant, and agree, that if the said Woodbury will pay us each our respecdividends, as above proposed, within thirty days ... we will release and discharge our several claims in full; and on said payment of dividends, our said claims shall be fully discharged and released.” The defendant covenants to pay such dividend, “ provided all his creditors ” shall “ come into the arrangement.” This provision was a condition qualifying the defendant’s covenants. The creditors who signed the deed on the receipt of the dividend, “ discharged and released their claims.” II. The deed recited that the defendant claimed to own fifteen shares in the Springfield bank, and that the savings bank claimed [567] that said shares were pledged as collateral security for a thousand-dollar debt which the defendant owed the savings bank ; and that it was agreed that Luther Adams should determine whether such pledge was valid and legal, and that his decision should be final; “ he to be furnished with the facts, on the part of the creditors, and the trustees of the savings bank.” The defendant had covenanted to pay the dividend within thirty days from the 16th of March, 1877. Whose was the duty of laying the facts on the part, of the creditors before Mr. Adams and procuring his determination of tbe status of the bank shares ? It was clearly not the duty, of the defendant. He had no interest in the question. When the thirty days were about to expire within which the defendant had agreed to pay the dividend, the trustees of the savings bank, who claimed the lien upon the bank shares, and the president of the national bank, which was a creditor, and the defendant laid the facts before Mr. Adams, and he determined that the lien was legal and valid. It is claimed that the award of Mr. Adams is invalid for the want of notice to the plaintiff. If that be conceded, it does not vitiate the deed. The plaintiff has received the full measure of dividend to which he is entitled, until he shall procure an award from Mr. Adams impeaching the lien asserted by the savings bank. But the plea alleges that the plaintiff received the dividend and indorsed it on the note, and kept the note only for the purpose of seeing if he could induce said Adams to “ reconsider and change his award,” which he attempted “ but failed to do.” If this is true, we think he waived all the objections upon which he now insists. It is undoubtedly true that an award, inter partes, without notice to the parties making the submission and without the opportunity to be heard, is void; and so of any other judgment. But in this case the contract provided that Mr. Adams should determine the status of the bank shares. Whether the savings bank had a legal and valid lien upon said shares, was a mere incident provided for in the execution of the contract. Like a provision in an insurance policy that in case of loss certain men named shall determine the amount of the loss, or in a farm-lease where provision is made that certain men shall determine certain incidents of the husbandryif such men become in [568] capacitated, or refuse to act, the contract is not thereby avoided. The plaintiff not only asks the court to disregard the determination of Mr. Adams, but to assume that the very reverse is the truth, and that without evidence. This, we think, would be an utter perversion of the contract. Judgment affirmed.