Quimby v. Melvin

Bell, J. The material part of the bond, as it appears — 262 — on oyer, is this. After reciting an agreement “ to refer the partition” of a lot of meadow, the condition is that “if the defendant, on his part, shall in good faith abide by and fulfil his said agreement, in having and perfecting said reference, and shall abide by and confirm the division or partition which shall be made by said referees, &c., and shall pay all such costs, attending upon and incident to said reference, as said referees shall award, &c., then, &c. The first plea is designed to set forth a performance of this condition, as to the first clause, and as to the second and third clauses, to show that no award was made, and they, therefore, could not be performed. The first replication to this plea is designed as a traverse of the plea of performance of the first clause of the bond, by alleging that “ defendant wrongfully hindered and prevented the referees from making an award as to the costs.” This replication is a perfect answer to the plea, if well pleaded. For the defendant, it is said it is defective because it does not state that the arbitrators took upon themselves the burden of arbitrating between the parties, or attempted to make an award. No authority is cited for this position, and it does not strike us as well founded. If they were prevented by one party from making an award, it seems entirely immaterial whether they had undertaken to arbitrate or attempted to make an award. The rights of the parties would be neither more or less, whether those facts existed or not, if no award was in fact made. The fact relied upon, that the defendant hindered the referees from making an award, cannot be otherwise regarded than as a breach of this bond, however it might be in the case of an ordinary arbitration bond, since the condition here is that the said defendant “ shall in good faith abide by and fulfil his said agreement in having and perfecting said reference.” Hindering the perfecting of the reference is a breach of the condition. The condition evidently contemplates that the “ referees should determine and award ” the “ costs at — 263 — tending upon and incident to said reference.” Independent of any provision respecting costs in the condition of an arbitration bond or agreement, arbitrators have power to award costs. Spofford v. Spofford, 10 N. H. Rep, 254; Chapin v. Boody, 5 Foster’s Rep. 285. And to render their award valid, it must be an adjudication of all the matters submitted. Varney v. Brewster, 14 N. H. Rep. 49. To hinder an award, in any essential part, is, of course, to defeat any valid award. On special demurrer, the replication might be objectionable, because of its argumentative form, since the allegation should have been direct, that the defendant hindered the making of any award conformably to the bond. It is objected that this replication is not a traverse of any thing alleged in the plea, and this appears to be the fact. The plea alleges that the defendant did in good faith abide by his agreement to refer the division and partition of the land, &c., and did in no way revoke the said submission.” The replication denies nothing alleged in the plea, but its denial applies entirely to a matter not asserted in the plea. Nothing is alleged to obviate the effect of the matters alleged in the plea, which are, of course, admitted, as they are not denied. The replication is, therefore, defective. But it is said by the plaintiff that the defect is not in the replication, but in the plea, which alleges performance of the condition, so far as it applies to abiding by his agreement to refer the partition, but asserts nothing in regard to fulfilling his agreement, in having and perfecting the reference, or the payment of costs. It is evident from the replication, that this matter of not perfecting, not completing the reference, but preventing an award, is one of the grounds of complaint in the case, and as the plea does not reach this point, it is clearly insufficient. The second replication raises the same point in a different form. The third sets forth an award of two of the. referees, in the absence of the other. Such an award, as both parties agree, is merely inoperative, and the replica — 264 — tion is, therefore, bad ; but as the plea is bad, these defects in the replications are of no importance. The second plea sets forth an award as to costs, made by-two of the referees, and denies that any other award was made by them. To this plea the plaintiff replies, first, that two of the arbitrators did make another award, within the limited time, dividing the land ; second, that the defendant wrongfully hindered and prevented the referees from making any other award except that alleged ; and, third, that the defendant wrongfully procured Woods, one of the referees, to refuse to participate in any award. The first replication is bad, because the award set up, being made by two only of the referees, is bad upon its face. The others are entirely sufficient. The plea sets forth a bad award, and denies that the referees made any other. Though defective, it is substantially that the referees made no valid award. The answers are that the defendant himself wrongfully prevented the making a proper award. This, if admitted, is a good answer. The defendant is n*ot to take advantage of his own wrong. The plea, in this case, is drawn from the forms adopted in actions founded on the common arbitration bonds. The condition of these is, that if the obligee shall stand to, abide, &c., the award of, &c., arbitrators indifferently elected, &e. In such a case, a plea of no award made is a sufficient answer. It may well be doubted whether a plea in this form, or substantially to this effect, is any sufficient excuse for neglecting to have and perfect a reference, which is entirely a different matter. It is not, however, necessary to pursue this inquiry, since it could not substantially vary the result. The third plea alleges that the matters submitted were the division of the land and the costs of the reference, that two of the referees seasonably made an award as to the costs, but the said arbitrators made no award as to the partition, though notified. The first replication sets forth another award, referring to — 265 — former parts of the pleadings, by two of the arbitrators. This is manifestly bad, as such an award is a nullity. The second replication is the same, except that it alleges the other award to be “ concerning the partition of the land aforesaid.” It is bad for the same reason as the last. The third replication is, that the arbitrators were wrongfully hindered by the defendant from making any other award. The plea is argumentative in its form, but its substantial effect is that the referees made no valid award. Regarding it in that light, the replication is a sufficient answer to it. This plea admits the same doubts as have been suggested as to the second plea. The fourth plea sets forth that the division of the land and the costs of the reference, were submitted to the referees,, and nothing else; that two of them made an award without the aid of the other, awarding to the plaintiff certain costs,, and that $36,30, part of the sum awarded, was not any matter in difference, submitted to the arbitrators, and was not the costs, or part of the costs, attending upon and incident to the said reference. The first and second replications merely offer issues upon the allegations of the plea, and they seem to be sufficient traverses of the matters alleged. They offer, however, im-. material issues, since it is wholly unimportant what an award, by only two of the arbitrators, related to. It was a-mere nullity. The plea, of course, which offers such an issue, must held bad. The result, then, is, that the first and fourth pleas are clearly bad. The second and third pleas are argumentative, but this can be taken advantage of only on special demurrer. It is doubtful if they furnish, if admitted, any answer to the action. If held sufficient, the second and third replications to the second plea, and the third to the third plea, are substantially sufficient, and show a breach of the condition of' the bond. — 266 — The first replication to the second plea, and the first and second replications to the third plea, are bad, and must be overruled. Judgment for the plaintiff.