2 Mich. 359 | Mich. | 1852
The defendants object to a recovery by the plaintiff in this cause, •and insist that the award of the arbitrators was void, because,
1st. The arbitration bond provides that “judgment in the Circuit Court for the County of Calhoun, shall be rendered upon the award which may be made pursuant to the submission, to the end that all matters in controversy in that behalf between the parties shall be finally concluded, pursuant to the provisions of the statute for determining controversies by arbitration;” and the statute not having been conformed to, either in the submission or the award, no judgment could therefore be rendered upon it;
2d. The award is uncertain; and
3d. The arbitrators did not pass upon all the matters submitted to them.
1. The arbitration between the original parties is regarded by the plaintiff as a common law arbitration, and the award is declared on as having been made upon a common law submission, and unless it can be sustained as such, it is evident that the action cannot be maintained. The true inquiry in order to determine this question is, what was the understanding of the parties ? Did they undertake to submit their controversies to arbitration, in conformity to the provisions of the statute, in order that a judgment might be rendered upon the award, or-did they entirely disregard the statute ? The only indication of any intention to make it a statutory arbitration, is the clause in the condition of the bond before recited. The statute then in force, (H. S., 1838, p. 531,) provides for a submission to arbitration By a sinqfie agreement
The counsel for the defendants cite the case of Inhabitants of Deerfield vs. Ames, (20 Pick, R., 480,) as sustaining their view of this question. The proceedings in that case were, in form, strictly conformable to the statute; but the submission was signed and acknowledged before the arbitrator himself, acting as a justice of the peace, and therefore gave him no jurisdiction as an arbitrator, under the statute. The Court in that case, held that the award could not be sustained as a common law award; and they say that it was in the contemplation of the parties that the proceedings of the arbitrator should be subjected to the supervision of the Court of Common Pleas, and that to hold the agreement for arbitration good at common law would be substituting another and very different contract from that into which the party entered. They put their decision upon the ground that the parties intended to enter into a statutory arbitration, and no other; and that intention was clearly evinced by their complying in all respects with the form of the statute.
In the case before us, no attempt was made to conform to the statute-When the bond was drawn, the parties may have intended to make it a statutory arbitration ; but if so, it is apparent that such intention was. abandoned by them, and that they did not, when the bond was executed, or subsequently, contemplate any other than a common law arbitration. This ground of objection is therefore untenable.
2. It is claimed that the award is void for uncertainty. It is a very reasonable rule, that every award, to be binding, must be certain; for the object of parties in submitting then disputes to arbitration, is to make an end of litigation, and if the award were uncertain, instead of putting an end to the controversy, it would be only a fresh source of litigation. The certainty which, the law requires, however, is certainty
The submission under consideration was general, of “all suits, controversies, trespasses, claims, demands, accounts, notes, bonds, orders, drafts, chattel mortgages, and every matter in dispute and unsettled between the' said Yrooman and Oliver C. Comstock, Jr., and Henry Halsey; and the said Vrooman, and- the said Oliver C. Comstock, Jr., William Halsey and Robert Halsey, and eveiy or either of them, and all matters relating thereto.”
The arbitrators, pursuant to such submission, awarded that said Oliver C. Comstock, Jr,, and Henry Halsey, pay to David Vrooman one hundred and twenty-nine dollars and seventy-five cents, and that said Comstock & Halsey redeliver and return to said Vrooman all personal property which they have taken by virtue of two certain chattel mortgages given to them by said Vrooman, one of which said mortgages was dated the 11th day of April, 1844, and the other the 16th day of May, 1844, and also all the personal property taken from said Vrooman’s possession by virtue of a certain writ of replevin sued out by said Comstock & Halsey before Joseph Chedsey, a justice of the peace for Calhoun county, against said Vrooman, on the 18th day of December? 1844, or in the event said property is not forthwith returned, that they pay to said Vrooman the sum of five hundred and twenty dolíais — that said Comstock & Halsey deliver to said Vrooman the said chattel mortgages and all obligations with said mortgages connected, and also the bond and mortgage on real estate which they hold against said Vrooman, dated the 12th day of April, 1844, and that they cancel or cause the said morigage to be satisfied of record — that said Comstock & Halsey pay all costs and charges of the arbitration, and that they pay to said arbitrators for their services the sum of eighteen dollars.
It is assumed that the reference to the two chattel mortgages is not a sufficient notice to the defendants what property they are to deliver up under the award, and that the omission to specify the articles taken.
In the case of Brown vs. Hankerson, (3 Cow. R., 70,) the award was holden to be void for uncertainty. It directed that one party should deliver or cause to be delivered to the other “ his right and claim of the said farm? Ho farm was mentioned in the bond of submission, nor in any previous portion of the award, nor was there any averment in the pleadings in relation to it. The identity of the farm was not susceptible of being ascertained from any specification contained in the award.
These two cases fairly illustrate the rule as to the certainly which the law requires in an award, and there are many similar cases in the books. (See Watson on Arbitrations, 119 to 126; 11 Law Library, 61.)
But it is claimed that the award is uncertain and not final, because it does not determine the title to the property to be returned, nor does it direct releases to be executed. To this it may be answered that it is not made to appear that the title to the property was in dispute between the parties; and even if it did so appear, I think it is settled by tho award. The submission was general, of all disputes and controversies, and all matters connected therewith. The award directs -the re-delivery of certain goods and chattels, taken by virtue of certain chattel mortgages, &c., and that the mortgages and all obligations connected with them, be delivered up to the mortgagor, or in default thereof, that the mortgagees should pay to the mortgagor the sum of $620. The legal
It may be remarked that there does not appear to be any ground for ■assuming that the $520, which was to be paid in the event that the property was not re-delivered, was intended as a penalty. The fair presumption, in the absence of any averment or proof as to the value of the property, is that the sum awarded was its fair value as ascertained by the arbitrators. But it is objected that the award is in the alternative, and therefore uncertain. I do not find any case where an award has been held bad for that reason, and it has even been decided that where one of the alternatives was certain, and the other uncertain or impossible to be performed, yet the award was good, for it is said the party can perform the award by performing that alternative which is certain. (11 Law Library, 63; 1 Taunton, 554.) In this ease both alternatives are sufficiently certain,' and the defendants might have performed either of them.
3. The third objection urged upon the argument is, that the arbitrators did not pass upon all the matters submitted to them: for that an account for sawing lumber, in favor of Comstock and William <fc Robert Halsey, was presented to the arbitrators and not acted upon by them.
It was assumed upon the argument that the award was made under a submission with an ita quod, and that therefore, unless it appeared upon the face of the award that all the matters submitted were passed upon, the award was bad. The submission was by bonds executed by the parties respectively to each other, in the penalty of one thousand dollars, conditioned to submit all disputes, controversies, claims, &c,, to
In the case of Wright vs. Wright, (5 Cow. R., 197,) the submission was with an ita quod; and in reference to one of the matters submitted, the arbitrators stated in their award that they did “ not take into consideration the house and shed, nor pass no order upon it.” Thus it appeared upon the face of the award itself that the arbitrators 'did not pass upon all the matters submitted to them. The Court in delivering their opinion, say: “ It is a general rule, that where the submission contains an ita quod clause, the award will be void unless it comprehend all the matters submitted. This rule is invariable, when the particular matters submitted are specified in the bond. But when the submission is general, and an award concerning one or more things is made, it will be presumed, until the contrary be shown, that nothing else was referred to the arbitrators, or brought before them, by the parties.”
In Sawyer vs. Pratt, (9 Met., 170;) Rider vs. Fisher, (32 Eng. C. L. R., 363;) and Randall vs. Randall, (7 East., 82,) the awards were made under references of special matters, and it distinctly appeared' upon the face of the awards, that all the matters submitted had not been passed upon by the arbitrators. So also,, in the cases of Tribe vs. Upperton, (30 Eng. C. L. R., 91;) Doe ex dem. Madkins, vs. Homer, (35 Eng. C. L. R., 382;) and Ott vs. Schroeppel, (3 Barb. S. C. R., 56.)
It is not necessary to determine in this cáse, whether the proof was admissible to show that the arbitrators, omitted to consider the account of Comstock & Co. and R. Halsey, against Vrooman, for sawing lumber. It appears from the testimony that Comstock and Henry Halsey caused this account to be presented, and proof to be given before the arbitratora in reference to it, and it is to be presumed that they claimed the benefit of it, and if allowed at all, that it was to be allowed in their favor. W. and R. Halsey were no parties to the submission, and no award could be made for or against them. If so, there can be no intendment against the award, because they are not named in it; but the Court must intend that the account was considered by the arbitrators in their award, unless the contrary is proven. Upon this subject, two of the arbitrators were sworn, and one of them testified that to his best recollection, “it was not thrown overboard;” aud the other, t]iat “it was considered.” There being no proof, and no intendment of law against this testimony, it establishes the fact that the account was passed upon.
I think the award was made within the time limited by the submission, although it was not signed and ready to be delivered until a late ^hour of the evening of the 8th of January; nor have I any doubt that they had a right to retain it in their hands until they'were paid for their services.
I am also inclined to the opinion that in a case of this kind, where all controversies between the parties, “and all matters relating thereto,” are submitted, it is competent for the arbitrators to determine in relation to the costs of the arbitration; but it is not necessary now to decide this point, for if they had not such power it would not vitiate the entire award, but only render it void for the excess.