Elliott v. Quimby

Upham, J. It is undoubtedly correct that an agreement for the submission of a cause is ordinarily a discontinuance of the suit; and that, as a general rule, where there has been [183] a submission of all demands, an award is conclusive against a suit on any demand subsisting at the time of the submission. Where, however, parties have submitted all demands to arbitrators, and they have made their report, it may still be shown, in an action afterwards brought on a particular demand, that it was not in dispute, and not laid before the referees, and the action may be maintained. 2 N. H. Rep. 26, Whittemore vs. Whittemore; 5 Mass. 334, Webster vs. Lee; 9 Mass. 320, Hodges vs. Hodges; 2 Verm. 417, Buck vs. Buck; 5 Greenl. 192, Bailey vs. Whitney; 4 Vermont 210, Hayes vs. Blanchard. Courts in such cases go behind the submission, to see what construction the parties gave to it, and what was in fact included under it; and where an award is plead they will not hold themselves concluded by the mere fact of an award, but enquire what was actually decided by the arbitrators. Where a submission has been made, but the arbitrators have refused to sit, the submission is not necessarily a discharge of the action, unless such expressly appears to have been the. intention of the parties. The submission is often made on an express understanding, or an implied presumption, that the referees will act, or the suit shall proceed; and if they attempt to do so under such circumstances, the whole attempt at submission fails. Where a submission of a suit has been made, and the arbitrators award conditionally the payment of a certain sum, or that the suit shall proceed, we hold it to' be so far subject to their direction that the award will be binding in this respect. In this case the arbitrators agreed on an amount due the plaintiff, but held the award in their own hands, subject to the condition that if the amount was not paid, the action was to proceed. The agreement of submission was by parol, and for aught that appears the arbitrators acted fully within the terms of the submission, as understood by the parties. There is, therefore, no good reason to hold that the action is discharged, or that the parties intended this should be the case, unless the [184] award was paid so as to discharge the suit. This has not been done, and the whole proceeding falls to the ground. The appointment of an auditor by the court was, under the circumstances, perfectly proper. The case would of course proceed precisely as though there had been no attempt at submission or award in the suit. The auditor has, however, transcended his authority, in passing on matters submitted to the arbitrators but not embraced in the suit. His report must, therefore, be set aside or recommitted, that it may be corrected in this respect. Report recommitted.