319 Mass. 401 | Mass. | 1946
This is an action of contract to enforce the award of an arbitrator in so far as it deals with two promissory notes. The trial judge found for the defendant. The plaintiff excepts.
Through a series of letters the parties agreed to submit to common law arbitration several matters in dispute between them. One of these matters related to the two
A common law award finds its sanction in the contract of the parties which constitutes the submission. J. F. Fitzgerald Construction Co. v. Southbridge Water Supply Co. 304 Mass. 130, 134. The award must therefore conform to the terms of the submission. Bigelow v. Newell, 10 Pick. 348, 354. As to each matter arbitrated the award is invalid either if it goes beyond the scope of the submission or if it falls short of deciding all that is submitted. Mickles v. Thayer, 14 Allen, 114, 121, 122. Houston v. Pollard, 9 Met. 164. Parker v. Clark, 104 Mass. 431. Camp v. Sessions, 105 Mass. 236. Rollins v. Townsend, 118 Mass. 224, 227. Kabatchnick v. Hoffman, 226 Mass. 221. Boott Mills v. Board of Conciliation & Arbitration, 311 Mass. 223, 226. Williston on Contracts (Rev. ed.) § 1929. See Burns v. Thomas Cook & Sons, Inc. 317 Mass. 398, 401.
In this case the plaintiff contends that by the terms of the submission as shown by the letters it was the duty of the arbitrator merely to define in general terms the obligations of the parties, and that it was not his duty to find specifically
It is true that in the first letter of the series the defendant, in dealing with the suggested arbitration of a single matter having nothing to do with the notes here involved, mentioned “percentage” “for the future” as the thing to be determined, but the plaintiff never agreed to this. Instead he insisted upon arbitration of “all differences” between the parties and expressed his willingness to lay before the arbitrator “all the facts of our various dealings.” Thereafter the defendant expressed his willingness to “meet . . . [the plaintiff’s] views in arbitrating everything over which there is a misunderstanding or difference of opinion.” Later the defendant wrote to inquire “whether there is any question as to this being an arbitration of our differences the result of which will be binding on both parties.” He added, “I think this is the definite understanding of both of us, but I believe now is the time to avoid any possible misunderstanding.” To this the plaintiff replied that it was his understanding that both parties agreed to abide by the decision of the arbitrator, and that the plaintiff was “so completely committed to the thought that this was a means of getting misunderstanding behind us” that he was a bit surprised that the defendant questióned the point.
This does not seem to us to be the language of an unusual type of submission limited throughout to the declaration of general propositions designed to serve merely as starting
We regard it as settled in this Commonwealth by Fletcher v. Webster, 5 Allen, 566, that where the ascertainment of an amount due is within the scope of a submission, an award for the payment of money which does not state the amount to be paid and does not in itself afford any means by which that amount can be made certain is invalid. In that case an award between a contractor who had built a house and the owner provided for the payment of a sum dependent upon the amount already paid on the contract and the amount required to discharge liens, without stating the amount already paid or the amount of the liens. It was
Commonly the object of an arbitration is to settle the entire controversy out of court. How far an award which, where a present payment is involved, does not state the sum due may fall short of accomplishing that object is well illustrated by the plaintiff’s offer of proof in this case. He offers an account which, without including footings, contains approximately ninety items of interest paid, of principal paid, of “Interest Received,” of “Return of Principa;!,” of “Mass. Income Tax Deducted from Payments,” and of calculations of interest on balances. The account is such that it might well be submitted to an auditor and, if contested by the defendant, as it might have been if the defendant had not relied upon the invalidity of the award, could easily have led to a prolonged trial.
Exceptions overruled.