Dundon v. Starin

By the Court, Cole, J. The motion to vacate the award was met by'the counter-motion to confirm it. The latter motion was founded on the written submission, the report made in pursuance thereof in writing by the two arbitrators, the papers thereto annexed, the minutes of the testimony taken by the arbitrators on the trial, and all other papers relating thereto filed in the office of the clerk of the circuit court. Roth motions were heard together, and the appeal is from the judgment rendered on the award. Under these circumstances we suppose all the affidavits and testimony used on the hearing of the two motions are before us, and must be considered. It was claimed on the part of the respondent that we could not look into this evidence, because it had not been preserved by a bill of exceptions. In such a case we do not understand it to be necessary to incorporate the testimony in a bill of exceptions in order to enable this court to review it on appeal. For our statute provides that where an appeal is brought from a judgment entered upon an award, certified copies of the original affidavits upon which any application in relation to such award was founded, and of all other affidavits and papers relating to such application, shall be annexed to, form a part of, and be returned with, the record of the judgment. Sec. 17, chap. 131, R. S. Such affidavits are therefore made a part of the judgment roll and record in the cause. Sec. 16. Hence no bill of exceptions is necessary to bring them to the record. [266] Upon looking into tbe whole case, we are satisfied that the arbitrators failed to pass upon all the matters comprehended in the submission, or,-in the language of the statute, so imperfectly executed their powers that a final and definite award on the subject matter was not made. It is an admitted fact that they made no award in respect to the value of the property left upon the farm, one half of which belonged, by the terms of the lease, to the appellant. It is said that there had never been any controversy or dispute between the parties about the division • or settlement of the property left upon the farm; that the'appellant had never requested a division, nor demanded the possession thereof; and therefore this property was not comprehended within the submission. The matters in controversy related principally to the property, crops and stock upon the farm, or grain upon it, and the portion to which each was entitled. The appellant, it was claimed, had wrongfully removed a large part of this property some time before the expiration of the lease; and the tenant insisted that he was entitled to damages for this unlawful act of the landlord, and full compensation for his share of the property taken. Some of the crops and stock was left on the farm in the possession of the tenant. The words of the submission are very comprehensive, embracing‘‘all manner of actions, cause and causes of action, suits, bills, bonds, judgments, quarrels, controversies, trespasses, damages, breaches, claims and demands now pending and existing or held by and between us, the said parties.” In view of the facts, can there be any reasonable doubt as to whether this language comprehended, or was intended to comprehend, the rights of the respective parties to all the property, crops, stock, &c., raised upon or belonging to the farm, according to the conditions of the lease, whether this property was in the possession of the one party or the other ? It seems to us not, and we therefore think the award should have included these matters. It is argued in support of the judgment that the case does not show that any evidence was offered be [267] fore the arbitrators in reference to the nature, amount or value of the crops and property left upon the'farm, and'therefore we must assume that the award comprehends all matters in dispute, or upon -which any proof was offered.- There is, however, the same certainty and quality in' the evidence relating to the value of the property left upon tlm farm, as in respect to the property removed. There is considerable discrepancy in the statements of the different witnesses-as to the amount of hay, its value, the amount of products, &c., left with the tenant. It was for the arbitrators to .consider these conflicting statements, and award upon the the value of the property left upon the farm, as well as the other matters embraced in the submission. The arbitrators doubtless exceeded their powers in awarding the costs and disbursements of the trial before them, including their fees and the rental of the room, against the appellant. The submission gave them no authority to include these expenses in their award ; and where that is the case, the following cases, cited by the counsel for the appellant, show that they have no right to award in respect to the costs and expenses of the arbitration: In the matter of Vanderveer, 4 Denio, 249 ; The People v. Newell, 13 Barb., 86, and authorities cited by Justice Beaedsley in his opinion. Perhaps the award in this respect might be corrected, were there no -other objection to it. But for the reasons given upon the other point, we think the judgment confirming the award must be reversed. Judgment reversed.