Brown v. Hankerson

3 Cow. 70 | N.Y. Sup. Ct. | 1824

Curia,

per Sutherland, J.

The objection taken to the award, below, was, that it bore date the 23d August, 1813, and purported to be made by virtue of a bond of submission, which bore date “ August 21 st, now last past,” whereas the bond declared on and produced in evidence bore date August 21 st, 1813, being August, instant, instead of past. The arbitrators also awarded general releases between the parties, from the beginning of the world until the “ 21 si day of August last past, being the day of the date of the arbitration bond,” thus showing that the award was made under a bond of .submission, of August 21 st, 1812, whereas the bond decíared on was dated August‘list, 1813; and consequently net authority was shewn to make the award.

The strict grammatical construction of the award is, perhaps, as contended for by the plaintiff in error, But the intention of the arbitrators is perfectly clear. They run into a mere inaccuracy of expression. To avoid such an objection we may, without any great violence, suppose that the words last past were intended by the arbitrators to refer to the day, and not to the month. (Vid. Dy. 376, c. Ord on Usury, 61, n. Cro. Jac. 646.) These awards are frequently made and drawn up by illiterate men, and it will not do to test them by the strict rules of grammar. If there had, in truth, been another bond of submission in 1812, it was. competent for the defendant to show it.

But the award is bad for uncertainty. It directs, “ that the said James Hankerson should deliver, or cause to be de-: livered, to the said George Brown, his right and claim of - the said farm, reserving the right of taking off the summer crops, when ripe, &c. and that the said George Brown shall, on or before 1st day of January next, pay, &c. No farm was mentioned either ir¡ the bond of subrqissiqn or in any previous part of the award ; nor is there any averment in the pleadings of the plaintiff in relation to it, (if, indeed, it could be helped by averment.) What farm the arbitrators intended is, therefore, altogether uncertain, and incapable of being ascertained.

In Bedam v. Clerkson, (1 Ld. Raym. 123) an award that one of the parties shall deliver up to the. other a certain writing obligatory, or a certain bill obligatory, which he had before,” was held to be bad for uncertainty, no description either of tjie date, the maker, or the amount of the bond, being stated. go in Cockson v. Ogle, (Lutw. 169) an award uthat the defendant shall deliver several books,” &c. was held bad, the award not specifying what boqks, So in Thinne v. Rigby, (Cro. Jac. 314) an award that “ the defendant should give security to the plaintiff, for the payment of £16, at two days,” was held bad for uncertainty, not shewing what security be should give, whether by bond or otherwise, Sp, alyo, in Tipping v. Smith, (2 Str. 1024) that the defendants give security, without specifying what, was held bad.

The award, being void in this particular, is void throughout, because the delivering of the farm by the plaintiff to the defendant, was the only act or thing which he was directed to do, and was the consideration intended by the arbitrators for the money which they directed the defendant tp pay to him, and for the recovery of which this action was brought. (Kyd on Aw. 259, 260, and the cases there cited.) If that part of the award which is void is so connected with the rest as to affect the justice of the case between the parties, the award -is void for the whole. (Kyd on Aw. 246.) The judgment below must, therefore, be reversed.

Judgment reversed.