7 Cow. 290 | N.Y. Sup. Ct. | 1827
. . _ This is a writ of error to the Washington common pleas. Finch declared in trover for a chaise and harness. It appeared that an execution was levied on his property, in 1813, for about $120. An agreement was made between him and Ackley, that Finch should assign to Ackley a judgment bond against David Smith,
*The defendant gave in evidence an arbitration bond, dated in December, 1814, between the parties, submitting all matters and differences to three arbitrators, so as their award, or that of any two of them, he made at a certain time specified. The award of two of the arbitrators, was produced, made within time. Tne plaintiff objected, that it did not appear that all three had heard the proofs and allegations. The court decided that the award was inadmissible ; because it did not appear on the face of it, that all the arbitrators met. The defendant offered to prove, that all ths arbitrators heard the proofs and allegations of the parties ; that two made the award, and the plaintiff accepted it, and received from the defendant the money awarded. The court rejected the evidence, and charged the jury that the plaintiff was entitled to recover.
If the plaintiff absolutely sold to the defendant the bond against Smith, with the chaise and harness, and received in payment and satisfaction, $120 in cash, and for the residue accepted, as cash, a demand of the defendant against the plaintiff, which demand was tainted with usury to the amount of $10, the only remedy of the plaintiff would be, to recover back, by action founded on the statute, the excess beyond legal interest. He cannot rescind the contract executed, and claim the property which he sold, although,
An award by two out of three arbitrators, is legally binding, if the submission authorizes it, and provided all have heard the proofs and allegations of the parties. In this case, the submission did authorize an award by two. On the face of the award, it did not appear whether all the arbitrators heard the cause, or two only; this was a fact necessary to be determined.
It is apprehended that no case can be adduced, showing the necessity of this fact appearing in the award itself. To
Judgment reversed.