Pearce v. McIntyre

Scott, Judge, delivered the opinion of tbe court. It must be obvious that the action of the inferior courts on motions to strike out parts of the pleadings in a cause can not be reviewed in this court, unless such motions designate the portions to be stricken out in some other mode than by reference to the pages and lines of the original record, as these never correspond with the pages and lines of the transcript filed here, so that it is impossible to ascertain the parts of the pleadings to which the motion refers. Motions to strike out parts of the pleadings should contain the parts sought to be stricken out, or they should be designated in a manner that this court can readily ascertain them. The record not showing what parts of the answer were stricken out, we can not review the action of the court below on that subject. We can see no error in the court in permitting the award to be read in evidence. There was no variance between the award and the petition. The arbitrators were authorized to fix the prices of the work done by the plaintiff for the defendant. This was done, and their adding that the sum found was for the plaintiff against the defendant was mere surplus-age, and did not affect any right of the defendant. No one can understand that the award prevents any defence on his part consistent with the fact that the work was worth the sum at whioli it was appraised. The defendant was not precluded by the award from proving any set-off or counterclaim he might have had against the plaintiff. Indeed he was allowed, and did do this. The award did not pretend to go farther than the arbitrators were authorized. It was perfectly consistent with the idea that there was nothing due to the plaintiff from the defendant. ■ It is competent to parties to make a single matter the subject of an arbitration. It is not essential to constitute an arbitration that it should adjust all matters in difference between ,the parties. A single matter is frequently a subject of reference, in order that the [426] award may enable the parties themselves to adjust all their dealings. For reasons given, there was no error in refusing the defendant’s first instruction. The third instruction asked by the defendant was properly refused because the plaintiff’s replication showed that there was no foundation for it. - The other judges concurring, the judgment is affirmed.