Callier v. Watley

120 Ala. 38 | Ala. | 1897

BRICKELL, C. J.

It is a general rule, at -common law, and tinder the statute, that an award of arbitrators, within the terms of the submission, operates, like a judgment, as a merger of the original cause of action, and may be pleaded in bar of -any subsequent suit founded bn the-original claim or demand, the object of the parties 'to the submission being presumed to be the ascertainment and determination of their respective rights and the silencing of litigation.—Brewer v. Bain, 60 Ala. 159; 2 Am. & Eng. Encyc. of Law, (2d ed.), 798. When the submission is expressly made under, and to be governed by, -the statute, it is to be presumed, unless the contrary appears, that the parties intend that such an award shail be delivered as may, when returned to the clerk of the circuit court, or to a justice of the peace, “have' the force and effect of a judgment at law upon which execution may issue.”—Code of 1896, § 513. I-f the award which was pleaded in bar of-this action was that Watley was to pay Callier the amount of the notes sued on less a credit of $ 15, the notes became merged in the award, as they would have been merged in a judgment rendered thereon by a court of law, and the award was a complete bar to the action. If, however, the award was, as contended by appellant, simply that Callier “should credit Watley with $15 on his said notes,” it would not operates as a merger, since, the award being treated as valid by both parties, it would be regarded as within the terms of, and authorized by, the submission, even if it were not so, and as directing a simple entry of credit, on the notes, and indicating an intention on the part of the arbitrators that the award was not to operate as a merger. The cause was tried by the court without the intervention of a jury, and it having been shown that the original award in'writing had been lost, parol evidence of its terms was received. '. The plaintiff and one of the arbitrators testified that it simply directed that Callier should credit, the sum of $15 on the notes, while the defendant, testified that.it directed him “to pay the said Callier-the amount of said notes less a- credit of $15,” and another of the- arbitrators testified that its terms were that •'“Callier was to credit Watley on his noteé the süm of $15 * * * * and-that Watley shó'uld pdy said notes less said'amount.”’ This was all the evidence, and upon it the co'Urt rendered judgment'in favor of the defendant,"1 presumably finding fr.om the facts in evidence that the terms of the award required the defendant to pay to plaintiff the amount.of the notes less $15. In view of the fact, that the testimony was evenly balanced, and of the presumption, arising from the submission under the-statute, that the parties comtemplated an award that would have the force and effect of ajudgment -when filed with the clerk of the circuit Court, and of the probability that the arbitrators intended to deliver, and did deliver, an award for the payment of money, we are of the opinion tlie finding of the court below on the facts was correct. But even if we were doubtful of the correctnessof this finding of .the court, yet, the cause having been tried by the court,without the intervention of a j.ury, its. judgment would not,-be disturbed unless -the finding-was clearly erroneous.-Simpson v. Golden, 114 Ala. 336.

Let the judgment Of the circuit court be--affirmed.