Page v. Pendergast

Woodbury, J. The law seems well settled, that a parol promise to abide the award of arbitrators, is binding.(l) The cases cited are promises, made before or at the time of the submission ; but when made after the hearing and before the publication of the award, the obligation of such [234] promises would seem to be still better grounded. Because the parties then possess fuller knowledge of their testimony, can judge better of each other’s defence, and have witnessed at length the official deportment of the referees. Stripped of its peculiar form, the note under consideration may be regarded as such a promise. * When Pende.rgast affixed his name to it, he intended to engage for the payment of whatever sum might be awarded against him. There was no fraud, or surprise, or mistake. The adjustment of the controversy by the mutual receipts, formed a sufficient consideration for such an engagement ; while the authority conferred on the referees to write a promissory note for the amount of the award over the place where bis name was signed, appears to be an authority, not greater nor more novel than what is often given by parol to agents to write negotiable notes over the blank name's of their principals. Doug. 496, Russell vs. Langstaff.—4 Mass. Rep. 47, Sullivan et al. vs. Putnam et al. Another view of the transaction is, that when the submission was made, the parties probably engaged to fulfil the award ; that w hen the note was signed, the award had been agreed on ; and that the note was expressly given to secure the amount of the award. In this view, the award itself might be deemed the consideration of the note ; and the note be considered as agreed to be given and received, either as security or in discharge and payment of the award. The Only plausible objection to the validity of the note, under either of these views is, that the party, against whom the award is made, may thus be defeated from enforcing any well grounded objection to the award itself. But the same objection applies to a certain extent to all submissions mot made under some rule from a court or magistrate. Because in actions on the promise to fulfil an award, made under such submissions, or on the award itself, it would seem that in England the validity of the award itself cannot be attacked by matter dehors. 2 Wils. 148, Wills vs. M’Carmick.—8 East 344.—[1 Gaw. Nisi Prius 5, Swinford vs. Burn.] (1) 9 John. 212. — 10 ditto 143» (2) Hanover vs. Weare. ante. The only redress for corruption, partiality, or mistake, is in chancery. How far, in the absence of a court oí chancery, we ought to admit such evidence to defeat an action on the promise, or on the award, is questionable^ 1) But in an action on a note by the promisee, when the note is in substance such a promise, or only security for such an award, the same defence would seem to be admissible, that would be in an action on either the original promise or the award. Yetas no evidence of this character was here offered, it is not necessary to decide what kind of defence would, in such case, be competent, and whether the same defence would likewise be competent when the note is sued by an endorsee. Our opinion of this transaction would not be altered, if the sounder view of it were as last suggested, that the note was given and received by agreement in discharge or payment of the award. It is true, that we should there hold the award to he prima facie paid, and place it altogether out of the case. 1 N. H. Rep. 281, Wright vs. Crockery Ware Com. and auth. there cited.—Etiam 6 Cran. 254.—15 John. 247, 341. But if there was no fraud, mistake, or surprise, why may not the award as well be considered paid by the note as by money 1 and if paid by money, there is no subsequent redress on account of the invalidity of the award. It is a contract executed. Again, any right or privilege conferred upon a party for his exclusive benefit, may always be waived(2) by the party himself. If the defendant, therefore, deliberately chose to fulfil and execute the award ; or, in other word% if he actually waived, by this note, every privilege he might otherwise have possessed to impeach the award, blame rests upon himself alone. Notes, executed at the time of the submission, and deposited with the referees to be reduced by endorsements to the amount of the award, are open to most of these objections, and still have been considered valid. 6 Mass. Rep. 46.—13 John. 187, Balty vs. Butler.* [236] Notes, deposited as a forfeiture on the non-performance of an award, may rest on different principles. Judgment on the verdict. Footnotes [*] 17 John. 303, Shoonmaker vs. Roosa et al.