Ellison v. Chapman

-Blackford, J. — This was an action of covenant brought by Chapman against Ellison. The suit was founded on an agreement under seal by which the parties agreed, inter alia, that the defendant should furnish 2,000 dollars for the purchase of public land; that the plaintiff should select the land to be purchased, &c.; that the parties should each attend to the buying and selling of the land ; and that the plaintiff should have one-third of the profits of the business. There are several breaches assigned, one of which is, that the defendant failed to furnish the 2,000 dollars. By agreement of the parties, the cause was referred to arbitrators, who were to return their award to the first day of the then next term of the Court, and the award was to be made the judgment of the Court. On the second day of the term next after the order of reference, the parties appeared, an award was returned in favour of the plaintiff, and the defendant was ruled to show cause, on or before the calling of the suit, why judg [225] ment should not be rendered on the award. At a subsequent day of the term the suit was called; and no cause being shown, judgment was rendered on the award. H. Cooper, for the plaintiff. J. B. Howe, for the defendant. The defendant contends that this is a case of partnership, and that an action at law will not lie by one partner against another; but this objection to the. suit is not well founded. There are many cases where an action at law lies by one partner against another for the non-performance of a covenant contained in the articles of partnership, and this is one of those cases. Cary on Part. 71.—Venning v. Leckie, 13 East, 7. It is also objected to these proceedings, that the award was not returned in time ; but this objection was not made in the Circuit Court, and it is too late now to make it. Jacobs v. Moffatt, 3 Blackf. 395. The last objection made is, that there should have been a scire facias on the award according to the statute. R. S. 1838, p. 71, sect. 7. This objection is answered by the fact, that the order of reference shows that the parties agreed that the award should be made the judgment of the Court. Per Curiam,.' — The judgment is affirmed with 2 per cent. damages and costs.