8 W. Va. 236 | W. Va. | 1875
The plaintiff, Madison M. Austin, brought an action of assumpsit in the circuit court of Mercer county, to
On the 10th day of November, 1871, an award was made by the two arbitrators, Harvey and Jordan, which recites that the plaintiff take nothing for his false clamor, and that the defendants recover, from the plaintiff the sum of $- for their costs about their de-fence expended.
To this award several exceptions were taken. The only one deemed material to notice is the following, to-wit, that “the arbitrators heard, tried and decided matters not submitted to them.” On the trial of this, and of all the exceptions, before the court, the plaintiff proves, by his own affidavit, that he proved his account by sworn witnesses ; and after he had done so the arbitrators heard evidence from the defendant’s witnesses to establish offsets and payments to the plaintiff’s demand, and that great injustice has been done to him by the award in this case. This evidence of the plaintiff is unimpeached and uncontradicted. The exceptions are overruled by the court, and judgment entered upon the award, that the plaintiff take nothing in the said action, and that the defendants recover their costs, &c. To this judgment of the court the plaintiff excepted, and from it has taken an appeal to this Court. ’Was this judgment right is the question now presented here ?
We now observe that there are no errors apparent on the face of this award, nor does i t appear from the record that it was procured by corruption or other undue means, or that there was partiality or misbehavior in the arbitrators. Was it then procured by ‘"mistake,” the only other ground allowed by the statute for interfering with the award ? It will be remembered that no plea or specification of offsets or payments was filed by the defendants to the plaintiff’s demand, and if the case had proceeded before the court a writ of enquiry must have been awarded, directing a jury to inquire iuto the amount of damages the plaintiff had sustained;' this inquiry would have been directed exclusively to the correctness of the plaintiff’s account, or bill of particulars, filed with his declaration, and no evidence of offsets or payments on the part of the defendants would have been allowed. This course was not taken, but just as the case thus stood, an agreement of submission was made and entered as a rule of the court, submitting the matters of difference between the parties to arbitration. These matters of difference, as the case then was, related simply to the cor
The judgment of the circuit court of Mercer county, complained of, is hereby reversed, with costs to the appellant, the award set aside, and the case remanded to said court for further proceedings.
Judgment Reversed, Award Set Aside and Cause Remanded.