Varney v. Brewster

Woods, J. It is objected, on the part of the defendant, that the award upon which this action is founded is unauthorized by the submission, and void; that the arbitrators did not pursue the submission ; that the submission authorized and required them to adjudicate upon all claims and demands existing between the parties ; whereas, in fact, the award made and published embraced only a part of those claims, and was not, as it is claimed it should have been, an adjudication upon all their claims. And it is true, that the submission was of all claims and demands existing between the parties, and the award was upon only a portion of those claims; and it is equally true that the adjudication was a partial, imperfect, and even an unauthorized execution of the authority conferred by the submission, according to its original terms and meaning ; and the award must necessarily be pronounced entirely void, unless the rights of the parties, and the authority of the arbitrators, can be considered as affected by the acts and agreements of the parties subsequent to the date of the submission. But that portion of the claims of the defendant, not considered by the arbitrators, and not embraced within their [53] a\vard, was withdrawn from their consideration, with the assent of the parties, and upon the written agreement of the plaintiff to submit that portion to the same arbitrators, to be considered and acted upon by them at a future period, and to pay such sum to the defendant as they should award him thereon. And the award upon which this action is founded was published also, by the assent of both parties, embracing all other claims then existing between the parties, excepting only the portion of the defendant’s claim thus withdrawn. The right which the defendant most unquestionably had, by the terms of the submission, to require an award at the hands of the arbitrators to embrace all the demands and claims existing between the parties, was waived by the defendant, and that, too, upon the consideration of the written agreement of the plaintiff to pay what should, at a future period, bo found by the arbitrators to be due the defendant on the portion of his claims not adjudicated. Until the award was actually made and published, the parties most certainly had a right to revoke the authority given the arbitrators by the submission, in whole or in part, and to limit their authority, and the extent of their action, in such degree and in such manner as they might choose ; and, moreover, to waive any rights which either had originally, in virtue of the contract of submission. And in the present case, for the supposed benefit and advantage of both parties, or for some other reason satisfactory 1o themselves at the time, they withdrew the portion of the defendant’s claims not considered or adjudicated on, January 12, 1839, and waived all right to an adjudication thereof, and made that a separate and distinct matter of arbitration and award, upon a new agreement, and at a future period, and assented to take the judgment of the arbitrators upon the other matters submitted only. This they had a clear right to do ; and now we think the objection to the award, for the reason assigned, after such agreement for future submission and present waiver, upon such a consideration, comes too late, and cannot avail the defendant. [54] We next come to consider the defendant’s set-off. This action was commenced July 20, 1839. Upon leave of court, granted at April term, 1840, the defendant filed, in set-off to the action, said award of April 14, 1840, made in pursuance of the agreement entered into January 12, 1839, and upon that portion of the defendant’s claims against the plaintiff then existing, but not embraced in the award of that date. The set-off was objected to for the reason, among others, that it was made after the commencement of the present action ; and for the further reason, that the facts testified to by witnesses, and recited in the report of the case, show that the award filed in set-off was made under such circumstances as rendered it void. It is not necessary, however, in the view which the court take of this set-off, to settle whether the inquiries made by the arbitrators of Whitton, the witness, after the hearing, was an irregularity, or misconduct in the arbitrators, or not; or, if it were so, whether the award could be avoided for that cause, except upon a proceeding in chancery to set the same aside. Hollingsworth vs. Leiper, 1 Dallas 161; Peters vs. Newkirk, 6 Cowen 103; Hagner vs. Musgrove, 1 Dallas 83; Chaplin vs. Kirwan, 1 Dall. 187, and Bassett vs. Harkness, 9 N. H. Rep. 164, are cases having a bearing more or less direct upon those questions. We are of opinion that the award cannot be considered a debt existing at the commencement of the action, and was therefore not proper matter of set-off in this suit. It is too well settled to require the citation of authorities to show, that a claim, in order to be a proper matter of set-off, must be a subsisting debt, due at the time of the commencement of the action, and upon which an action might then be sustained. The award filed in set-off was plainly not such a debt. Jefferson County Bank vs. Chapman, 19 Johns. R. 322. A set-off is in the nature of a cross action, and in order to sustain it, every thing must be proved show [55] ing a right to such action at the date of the plaintiff’s suit. Dickson & a. vs. Evans, 6 T. R. 57 ; Carpenter vs. Butterfield, 3 Johns. Cas. 145. It is true that the subject of the submission, and upon which the award was based, was a claim existing at the date of the present suit. But it is well settled, that when the subject of the submission is a contract subsisting between the parties, the legal effect of the award is to extinguish such contract. Curley vs. Dean, 4 Conn. Rep. 259. In this case the claim for logs was a subsisting claim at the date of the suit, but that claim was extinguished by the award. The award itself, which was the subject matter of the set-off, was a new cause of action, arising at its publication, which was after the commencement of the present action. The set-off, therefore, is not sustained, and there must be Judgment on the verdict.