Pettibone v. Perkins

JBy the Court, Shite, J- This is an appeal from the circuit court of Milwaukee county. The pleadings and proofs are very Toluminous, and we shall not here attempt to give even a synopsis of them, but proceed at once to consider the material points presented for our examination. The objects sought to be accomplished by the bill, as will be seen from a statement of the case, are 1st. To set aside the award mentioned in the bill of complaint, theretofore made by arbitrators of the certain matters in difference between the parties, specified in the submission set forth. 2d. To set aside a sale of the vessel, “ Cherubusco,” purporting to have been made by the defendant under a chattel mortgage executed by the complainants; and 3d. To obtain an account between the parties. For the purpose of determining the questions presented for our consideration it is not necessary that we should extend our inquiries beyond the submission, and the relations of the parties at the time it was entered into. The objections taken to the award are, that the arbitrators made a mistake of law and of fact; that the award is not in pursuance of the submission; that the arbitrators exceeded their authority; that they failed to pass upon the particular matters especially submitted; and, for misconduct of the arbitrators. Formerly, courts of equity exercised a very great power over awards; but by statute their control over matters of that kind have been very much abridged. We are not aware of, nor have we been cited to, any statute iu this state, by which arbitrations are made by rule of court, in the nature of judgments at law, and thus invested with all the presumptions and — 624 — legal intendments that pertain to the latter. (See Story’s Eq. Juris., § 1650, et seq.) It is one of the primary requisites to the validity of an award that it must be in pursuance of the submission. Authorities might be cited to almost any extent, but it is deemed unnecessary. The principle is too well established to be now called in question. The validity of the award depends wholly upon the articles of submission, and it must conform thereto, and must embrace the whole of the subject matter submitted, as well as the rights of the parties submitting, so far as they are submitted. Watson on Arbitration and Award, p. 175; 179; Russell’s. Arbitrator, 236; Lee vs. Ornstott, 1 Pike, 206; Stevens vs. Gray, 1 Harr., 347; Gibson vs. Powell, 5 Smedes & Marsh, 712; Adams vs. Adams, 8 N. H. Rep., 82; Pratt vs. Hackett, 5 J. R., 614; 11 Wheat., 446; 15 Ala., 398; 2 Halst. C. R., 450; Solomon vs. McKinstry, 13 J. R., 27; Bean vs. Farnam, 6 Pick., 269, 4 Dall., 285 ; 3 Yates, 567; 7 Mass., 399; 5 Wheat., 394; 2 Caines, 235: 3 Cow., 70; 5 Id. 197. Upon a careful examination of the award rendered in this case, and of the submission, we have been unable to conform the former to the requirements of the latter, and are constrained for that reason as well as others to set it aside. The submission is in the following words, and duly executed by the parties thereto : “ Know all men by these presents that we, Sylvester Petti-bone and Stephen A. Hubbell, of the city of Milwaukee and state of Wisconsin, are held and firmly bound unto John T. Perkins, of the city and county aforesaid, in the sum of two thousand dollars, lawful money, for the payment of which sum to the said Perkins, his heirs, executors, administrators and assigns, well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly, jointly and severally by these presents. Sealed with our seals and dated this 4th day of April, A. D. 1851. Whereas matters of difference have arisen between Sylvester Pettibone and Stephen A. Hubbell and the said John T. Perkins, in relation to the unsettled accounts of the schooner Cherubusco, and the amount of indebt — 625 — edness' from tbe said Pettibone and Hubbell to said John T. Perkins, or from said Pettibone individually to said Perkins, or from said Hubbell individually to said Perkins, arising from unsettled accounts between them in relation to said schooner Oherubusco, and any damages arising on contracts in relation to the running or sailing of said schooner, and all other matters. And whereas it is agreed between the said Pettibone and Hub-bell and the said John T. Perkins to refer all unsettled matters of difference between them as aforesaid to the award and determination of • E. C. Kellogg, E. K. Caswell and Albert Smith, Esq., who shall be arbitrators to adjust and settle all matters of difference between them of every kind and nature which are not already adjusted. Now the condition of this obligation is such that if the above boimden Sylvester Petti-bone and Stephen A. Hubbell, their heirs, executors and administrators, shall and will, upon their parts, jointly and severally, truly stand to, obey, abide, observe, perform, fulfill and keep and pay the award, order, arbitrament and final determination of said arbitrators, so as the said award be made in writing on or before the 15th day of April, instant, then the above bond to be void, otherwise to be in force. And the said Sylvester Pettibone and Stephen A. Hubbell hereby consent and agree that the award so made by the arbitrators be filed in the Milwaukee circuit court, and that a judgment of said court shall be rendered upon said award to be made pursuant to the above submission and bond.” And the award made by the arbitrators is as follows: “ To all to whom these presents shall come — Greeting : “ Whereas certain controversies have arisen between John T. Perkins, Sylvester Pettibone and Stephen A. Hubbell; and whereas the said parties, by a written agreement by them for that purpose duly made on the 4th day of April, 1851, stipulated and agreed, each with the other, to submit the said controversies to E. C. Kellogg, E. K. Caswell, and Albert Smith, so that the said award should be made on or before the 15th day of April then current, and after the entry upon the éxecution of said arbitration, it was found that said award could not be — 626 — made at tlie time aforesaid, it was on tlie 14th day of April, 1851, further stipulated and agreed by and between the parties aforesaid that the time for making the said award should be extended until the 28th day of April, 1851; Now therefore know ye that the arbitrators hereinbefore named, duly assembled in the city of Milwaukee, under, and in pursuance of, said agreement of submission, on the 9th day of April, 1851, and all of the said parties being present, with their respective counsel, tlie said arbitrators were duly sworn according to law, and entered upon the discharge of the duties devolving upon them, as such arbitrators as aforesaid, and from day to day continued so to consider, from time to time the various matters pertaining to said arbitration and the proofs and allegations of the said several parties, and did fully hear and consider the same in the presence of the said parties, and their counsel, and after due deliberation thereupon, had by the arbitrators aforesaid, concerning the matters submitted to them as aforesaid, by the said submission hereto annexed, we do award, order and determine that there is due and unpaid, from the schooner Cherubusco the sum of two thousand three hundred and forty-three dollars and fifty-one cents, unto the said JohnT. Perkins, with interest on the same, and that of this amount the said Hubbell & Pet-tibone are personally liable to the said John T. Perkins for the sum of eleven hundred and seventy-one dollars and seventy-five cents, with like interest, and that the remaining sum of eleven hundred and seventy-one dollars and seventy-five cents, as aforesaid, so due to the said John T. Perkins, shall be a lien upon said schooner Cherubusco, and upon her earnings, freights, or other increase, first to be paid to said John T. Perkins independent of all other claims except ordinary expenses in the use of the same. And we do further award and declare that the said parties shall pay to the arbitrators the sum of one hundred and fifty dollars for their services in this behalf, upon delivery of this award, and to be paid one-half by the said Pettibone and Hubbell, and the other half by the said John T. Perkins, and that no other costs or charges arising out of his a rbitration shall be a charge of eitherof said parties against — 627 — the other or any of them; and that all accounts of the respect» ive parties produced before ns shall be taken and deemed as settled and cancelled, so far as they have been submitted to ns. In witness whereof we have hereunto set our hands and seals this 24th dav of April, in the year 1851. [Signed] ALBEET SMITH, [l. s.] E. K. CASWELL, [l. s.] E. 0. KELLOGG-, [l. s.] “ Sealed and delivered in ) presence of j “ M. H. OetoN, “ J. E. ARNOLD.” It will be seen that the matters submitted, were, the unsettled accounts of the schooner Cherubusco, the amount of indebtedness from Pettibone and Hubbell to Perkins, the indebtedness of Pettibone individually to Perkins, or of Hubbell individually to Perkins, arising from the unsettled accounts between them in relation to the schooner Cherubusco, and any damages arising on contracts in relation to the running of said schooner. The award fails to meet the requirements of the submission in several important respects essential to the settlement of the matters in dispute between the parties. It does not find or determine the individual indebtedness of Hubbell to Perkins, which, it will be seen upon an examination of the bill, was a material element in the controversy. There is the same defect in it in regard to the individual liability of Pettibone. The awai’d is, that there is duo and unpaid from the schooner Cher-ubusco, the sum of 02343.51 to Perkins, with interest, &c., and of this amount Hubbell and Pettibone are personally liable to Perkins for 01171.75, with like interest, and that the remaining sum of $1171.75, so due to Perkins shall be a lien upon the schooner Cherubusco, and upon her earnings, freights, and other increase, first to be paid to the said Perkins independent of all other claims except ordinary expenses in using the same How much of these sums are to be paid by Hubbell ? What was the amount of his individual indebtedness ? If the vessel, owed the amount specified in the award to Perkins, what por — 628 — tion of the vessel’s debt was chargeable to the several owners ? The award is so uncertain, so vague, and inexplicit, that we do not. see how it could be enforced. Nor is it easy to gather from the language of the award the intention of the arbitrators. It certainly does not respond to the submission entered into by the parties,.and for that reason,"as well as for its uncertainty,it must be set aside. There are many other objections taken to the award, but we do not deem it necessary to allude to them, as the objection just noticed is fatal. It may perhaps, be well to remark, as this case must be remanded for an account between the parties, that.very grave objections might be commented upon, which were taken to the character of the evidence received by the arbitrators. However, the accounting officer to whom under the decree the case will be referred, will doubtless be governed by the established rules in such cases, and further comment is unnecessary. In regard to the sale of the schooner by Perkins under the chattel mortgage, it is sufficient to say, that the proofs in the case abundantly satisfy us that it was grossly fraudulent, and absolutely void. Comments upon the transaction will not help or extenuate the conduct of the defendant in that behalf, and we prefer to pass it by with the simple utterance of our own conclusion from the evidence in the case. It is apparent, therefore, from the remarks already made, that the rights of the parties stand as they did before the submission, and before the pretended sale of the vessel by Perkins, and that the decree of the court below is right and must be affirmed. Decree affirmed with costs, and cause remanded.