Winne v. Elderkin

Wheeoht, J. This cause was tried hi the late district court of Walworth county, and the error alleged to have been committed on the trial is, that the district judge refused to allow [250] the plaintiff in error to introduce evidence of a parol submission of the matter in controversy between the parties to arbitrators, and an award of the arbitrators upon the submission. The declaration was in assumpsit, and the suit was commenced by the defendant in ei’ror. To the declaration of the plaintiff below, the defendant below pleaded the general issue, and, to defeat the action, offered to prove on the trial that all matters of difference in the suit had been, previous to its commencement, submitted to arbitrators, who had met the parties, aud had, in pursuance of the submission, after having examined the testimony, made an award in favor of the said defendant, of which the said plaintiff had notice, etc. Two questions were raised in the argument; one was, that the award offered in evidence was void, and the other, that admitting it to be valid, it was inadmissible under the plea. Upon general principles, and without regard to our statute upon the subject of arbitrations, there can be little doubt that the award was a valid one between the parties. • Authority need not be shown to prove that an award upon a parol submission is binding upon the parties at common law. If this is the correct doctrine upon the subject, the award in question was valid, uuless .our statute in relation to the subject of arbi-trations so changes the rights of parties as to deprive them of the power to settle their differences by arbitration, unless the statute is complied with. In order to have a submission under the statute, the parties must make an agreement in writing, and must acknowledge it before a justice of the peace ; and it is contended that the statute takes away the right of parties to submit matters in controversy between them, to arbitrators in any other mode. s But we are of opinion that this is not the correct view of the subject; the statute contains nothing which shows that the legislature intended to prevent parties from adjusting their differences by the convenient mode of common law arbitration. Similar statutes in other states have not received [251] tbe construction contended for. Wells v. Lain, 15 Wend. 99; 8 Mass 1; 6 id. 46. If the award in question was valid, it remains to be seen whether it was admissible in evidence under the plea of the general issue, and we have no doubt on the subject; au award in respect to the pleadings is treated in the same manner as a judgment (Cowen & Hill’s Notes, 1035); and authority is abundant to show that in actions of assumpsit a judgment can be given in evidence under the general issue. Young v. Black, 7 Cranch, 505; Cowen & Hill’s Notes, 1026, 810. hi rejecting the evidence the judge erred, and the .judgment of the district court must be reversed. Judgment reversed.