Adams v. Adams

8 N.H. 82 | Superior Court of New Hampshire | 1835

Richardson, C. J.,

delivered the opinion of the court.

It is insisted, in this case, that parol evidence is inadmissible to impeach an award legal on the face of it, except for partiality or corruption in the referees.

But the English cases cited by counsel do not sustain the broad ground taken.

The case of Lucas vs. Wilson, 2 Burrows 702, only decides that upon a motion for an attachment to enforce the performance of an award, the court will not enter at all into the merits of the matter referred, but only take into consideration such legal objections as appear upon the face of the award, and such objections as go to the misbehavior of the arbitrators.

There are other cases in which the same rule has been adopted. 2 Tidd’s Prac. 764; 7 D. & E. 73, Pedley vs. Goddard; 6 ditto 161, Holland vs. Brooks; 7 East 81, Randall vs. Randall; 3 Bingham 167, Brazier vs. Bryant.

But upon an application to a court in England to set aside an award, if the application be in season, every ground of relief in equity against an award is equally open in a court of law. 2 Tidd’s Prac. 762; 3 Burrows 1258; Caldwell on Arbitration 176—183; Kyd on Awards 342.

Thus an award may be set aside, if the arbitrator, intending to decide according to law, mistake the law, although the matter does not appear on the face of the award. 3 East 18, Kent vs. Elstob; 8 Bingham 86, Gingell vs. Glascock.

So where it was shown that the umpire who decided the cause was chosen by lot, the award was set aside. 3 B. & Adolphus 428, Ford vs. Jones; 9 B. & C. 624; 3 B. & C. 407.

And the question, whether an arbitrator has exceeded his authority, may be settled on an application to set the award aside. 5 Dawland and Ryland 317, Morley vs. Newman; 1 Broderip and Bingham 80, Bonner vs. Liddell.

Where arbitrators omitted to take into consideration a demand laid before them by one party, and admitted by the other on the ground it was not a matter in dispute, the award was set aside on an application to the court for the purpose. 1 B. & Adolphus 723, Robson vs. Railston.

In many cases, relief against an unjust award is to be sought in a court of equity. Caldwell on Arbitration, 183—189; Kyd on Awards 327.

The cases of Perkins vs. Wing, 10 Johnson 143, and Barlow vs. Todd, 3 Johns. 367, do not apply in this case. They were suits on arbitration bonds.

In Newland vs. Douglas, 2 John. 62, it was only decided that an action docs not lie to correct a mistake made by referees.

In Cranston vs. The Executors of Kenny, 9 John. 212, it was decided that where a cause is submitted to arbitration without a rule of court, the court will not interfere to set aside the award.

In New-York, relief against an unjust award may be had in a court of equity. 17 Johns. 405; 2 Johns. C. R. 339.

In Massachusetts, when awards are made under rules of court, they are open to all legal objections, and may be set aside, or the cause be recommitted to the referees, as justice may seem to require. 6 Mass. R. 70. Boardman vs. England; 10 Pickering 348, Bigelow vs. Newhall; 6 Greenleaf 21, North Yarmouth vs. Cumberland.

in this state, awards under rales of court have, uniformly been considered as open to every legal exception, whether the grounds of the exception appeared upon the face of the report or not. And no case is known in which it was ever held that they could not be impeached by extrinsic evidence. Indeed, it would be strange if they could not be so impeached in this state ; for there is no other mode in this state in which relief against an illegal and unjust award can be obtained. The law on this subject must now be considered to, be settled. 4 N. H. R. 357, Greenough vs. Rolfe.

In this case, the parties agreed to submit the action and all demands to arbitrators. This must be understood to be a submission of all demands between the parties, and nothing more. It must also be understood to be a submission only of demands directly between the parties, and cannot be construed to embrace a contingent interest which one may have had in a demand which a third person may have had against the other. The agreement to refer, like all other agree-merits, is to have a reasonable construction, so as to give effect to the intention of the parties ; and nothing is to be construed as within the agreement which cannot fairly be pre- ' sumed to have been within the intent of the parties.

The note which the plaintiff laid before the referees, and one half of which they allowed him, was a demand between the executor and the defendant. It appears that the agreement to refer the case was made as early as March, 1833, and that the plaintiff did not obtain even possession of the note until the 20th of December, 1833. He had, then, no demand at the time of the submission against the defendant by reason of the note. His claim, whatever it might have been on account of the note, was against the executor. There is, then, no ground to suppose that the note could have been intended to be submitted to the arbitrators in this case.

It is said that the claim of the plaintiff to one half of the note, is just and equitable. This may be so. But in the first place, his claim is not against this defendant directly. He has no demand on this account against the defendant except through the executor. The equity of the claim cannot change its nature in this respect. In the next place, there is a wide difference between a case where referees undertake to decide equitably a claim submitted to them, and a case where they undertake to decide a claim not submitted to them, merely because it is equitable. Neither law nor equity can give them authority to decide a claim not submitted. They derive their authority from the agreement of the parties, and not from the justice or equity of the claims laid before them.

The award is then founded, in part at least, upon demands not submitted to the referees.

But this is not all. The note was a very stale claim. If was given twenty-five years before the time of the hearing before the referees. It was apparently barred by the statute of limitations. And it does not appear that there was any. thing, to take it out of the statute except the agreement of:the parties to this suit to refer all demands between them. And this was held to have that effect, by the arbitrators. It is altogether incredible that they could have so held, unless they supposed that this note had been submitted by the parties. They could not so have held, unless they supposed that the defendant clearly intended to submit the note to their decision. They not only then mistook the extent of their authority, but made that mistake the ground of their decision upon the merits of the claim.

It is, then, clear that the award is, to a very considerable extent, void.

But it is said that an award may be void in part, and valid for the residue. This is true in some cases. If in this case the referees had stated in their award what sum they allowed on account of the note, and what sum they allowed on other accounts, we might have rejected the sum allowed for the note, and have given judgment for the residue. But they have awarded a gross sum, and what they awarded on account of the note does not appear on the face of their award. We cannot alter or amend the report ; and the judgment we render must he founded upon what appears on the face of the report. This is not a case then where a part may be rejected, and judgment be rendered on the residue.

It is moved that the case may be recommitted to the referees.

It is very common to send cases back to referees, where justice seems to require such a course. 6 Mass. R. 70; 4 Green. 459; 9 Mass. R. 325; 2 D. & E. 781.

But the question whether a case shall be sent back, is always to be settled in the exercise of a sound discretion. It is by no means a matter of course. And this is not a case which in our opinion ought to be sent back to the referees.

There is not the slightest reason to believe that the defendant ever intended to submit the note to the decision of these referees. Indeed, it is highly improbable that he ever thought of such a course. Yet it appears from the affidavits filed in the cause, that the plaintiff, after the agreement to refer was made, went to the executor, and without disclosing to him that the note was wanted to lay before the referees, but holding out that it was wanted for another purpose, and promising to return it in a short time, obtained the loan of the note; and having thus obtained the note, he laid it before the referees.

This course, viewed in the most favorable light, cannot be considered otherwise than a very unfair attempt to gain an advantage over the defendant. And as the plaintiff has rendered void the award by a course which he ought not to have pursued, we do him no injustice by leaving him to take the consequences of his own unfair conduct. It is not a case in which we can, in the exercise of a sound discretion, interfere.

The report is rejected, and the rule discharged.