Lynch v. Nugent

Granger, J. 1. Arbitration: agreement: construction: award. — I. It is said in argument that the plaintiff seeks to recover on .an express contract, as to wfdch there is a denial, and, as we understand appellant, that the arbitrators must have found for him on such a contract or not at all; and in this respect we think appellant’s position correct, as the averments of the petition are of express promises to pay or return the money expended. The arbitrators clearly, find that there was no previous promise to pay, or request for Lynch to expend, the money. It is, then, a question only if defendant, after the expenditure, and in pursuance of a conclusion not to carry out the original plan, agreed that he would return the money to Lynch. This is the ground on which recovery is sought in one count of the petition. The count was not assailed by demurrer, and its sufficiency cannot now be questioned. The stipulation was for the arbitrators to determine the liability of the defendant, under the state of facts as pleaded. The arbitrators find that the defendant is indebted to plaintiff in the sum of two hundred dollars, but it is urged that the particular facts as found by the arbitrators negative any right of recovery ; and reference is made to the findings as to how the plan of raising money by voting was suggested by Morris Lynch, and the reckless course he pursued, and that neither the committee nor the defendant acceded thereto. But these findings do not reach the cause of action stated in the count we are considering. They refer 'mainly to the other count. A finding is that after the fair Lynch was “ clamoring” [429] for a return of Ms money, and there were efforts at settlement, and that the defendant referred the matter to the committee of management, and requested it to settle and adjust it; that the committee made a proposition which was rejected; that thereafter the defendant agreed with Lynch that, if the committee did not settle and adjust the claim, he would take the matter out of its hands, and adjust it himself. It is upon this agreement that plaintiff seeks to recover, and he is certainly entitled to recover, if the defendant meant, by adjusting the matter, that he would pay the money or any part of it. The word “adjust” has received some attention in argument, as that it means “to settle or bring to a satisfactory state ;, to dispose of the matter in a just manner.” In determining a question of fact, it is proper to inquire after the sense intended by the parties using the word, having in view in so doing the ordinary acceptation or significance of the word. Within certain limitations in ordinary use, the words “adjust” and “settle” have different meanings. They are not infrequently used in the sense of “paying.” They are synonyms, and in some of their uses are equivalents of “to fix — to arrange;” in others, “to determine; to establish ; to regulate.” What the defendant meant by saying that he would adjust the matter himself was clearly a question for the arbitrators. The testimony on which they based their findings is not before us, and we must assume that the findings have support, unless the assumption is overborne by the record. We think, however, the assumption is strengthened by the record. Looking to the particular facts found, we see Lynch was at all times claiming the return of the money. The committee, under its direction to adjust the matter, made a proposition which was rejected. After this, defendant agrees that he will adjust it himself if the committee does not. Such a state of facts i§ hardly consistent with the idea of adjustment, except by payment. Then, again, it is found that after this agreement [430] the committee “convinced”' defendant “ that nothing was due to said Lynch.” This finding affords a strong inference that the agreement was made under a conviction that something was due, and, under the pleadings, the question is, did he so agree % not, was something really due % It is urged that the board exceeded its authority by taking as the basis of its finding “the reckless and irrational conduct of Morris Lynch,” but in this respect the record is misapprehended. We understand that the board did not make such conduct the basis of its finding, but the agreement, as we have stated ; and this conclusion disposes of a number of other questions presented in argument. 2. The same The submission provided that the board of arbitrators should make inquiry as to certain publications in the “ Capital, News and Register,” and make findings “whether the said newspaper articles were true or false, and if found to be false, the said person whose name appeared to the arti-. cles shall, over his own name, be obliged to retract the said articles, or so much thereof as is adjudged untrue ; and said retraction shall be published in the same newspapers where the said article so found to be untrue was first published.” We need make no inquiry as to a failure to make retractions from the pulpit, or a necessity therefor, as plaintiff makes no complaint 'in that respect. There seems to have been an article in the Register,■ entitled, “ An Untruthful Priest,” in which was a letter, over the name of Morris Lynch, and the board find that the letter was not written by Morris Lynch, but by another person, and there is no finding that Lynch was responsible therefor. The finding, in substance, is that Lynch acknowledged, under oath before the board, that the letter was false, and expressed a regret that it was published over his name. A complaint is made that the award is invalid because it does not provide for a retraction by Morris Lynch, and appellant says: “It was expressly agreed that, in case the articles were found false, then they [431] should be retracted over the name of the person whose name appeared to the articles ; and this, regardless of who was the author.” In this respect there seems to be a misapprehension as to the duty of the arbitrators. By the stipulation for submission the board was only to determine the truth or falsity of the publications. If found to be false, the stipulation then fixed the duty of the party making the publication; but there is nothing requiring the arbitrators “to adjudge that the same be retracted,” as stated in the demurrer. If it be conceded that a retraction by Morris Lynch was a condition precedent to a right of recovery on the award, still it cannot aid appellant on this appeal, as no such point is presented by the demurrer or in argument. 3. —: decisions on questions not submitted: effect. III. The arbitrators stepped somewhat aside to render some' unsolicited service by way of promoting harmony, and decided some questions not submitted, and gave some advice unasked, anq in this respect it is said that they exceeded their authority; and it is true, but their acts in this respect are only void. These decisions and recommendations are entirely foreign to the questions submitted, and are of such a nature that they could not have affected the result as to the matters submitted, and in such cases they do not have the effect to avoid the arbitration. Fox v. Smith, 2 Wils. 267; Addison v. Gray, 2 Wils. 293; Orcutt v. Butler, 42 Me. 83; Richardson v. Payne, 55 Ga. 167; Bogan v. Daughdrill, 51 Ala. 312. These considerations are conclusive on this appeal, and the judgment is Appiemed.