23 Cal. 365 | Cal. | 1863
delivered the opinion of the Court—Norton, J. concurring.
This is an action to enforce an award. The case was tried by the Court, who found for the plaintiff, and a judgment was rendered accordingly, from which the defendant appeals. It is objected that the umpire was selected by the arbitrators before they commenced to hear the case, when the articles of submission provided for such selection in the event of a disagreement between the arbitrators. This objection is not tenable. The arbitrators in such case had the
It seems that on the thirty-first day of October, 1860, the parties agreed to submit all matters in controversy between them to arbitration—the award to be made on or before November 6th. No award was made under this submission; and on the second day of April, 1861, they agreed that the same matters should be resubmitted to the same arbitrators, and that the arbitrators should also take into - consideration and render their award upon any damage that the defendant may have been entitled to by reason of any striking given to him by said plaintiff, and the detaining by him from said defendant of certain trucks and chains. The award was rendered May 4th, 1861, that Thomas should pay to Dudley eight hundred and fifty dollars, on or before May 14th, 1861, in full payment, discharge, and satisfaction of all moneys, debts, and demands due from him to Dudley; and that the said parties should, within ten days next ensuing the date of the award, seal and execute to each other mutual and general releases of all actions, causes of actions, suits, controversies, claims, and demands for or by reason of any matter or thing from the beginning of the world down to the date of the said submission. It is objected that the award covers matters not submitted to the arbitrators; but this is not sustained by the record. The award evidently includes no matter not submitted ; nor do we think the award respecting the release goes beyond the 'matters submitted. It includes all matters up to the date of the submission but none since; and it is thus authorized by the submission.
It appears that after the award had been made, the arbitrators, on the sixth day of May, 1861, attached the following certificate, signed by them, to a bill of costs in the case amounting to one hundred and eighteen dollars and twenty cents, viz.: “ We, the undersigned, certify the foregoing to be the correct bill of costs in the
In the case of Porter v. Scott (7 Cal. 312) it was held, that any alteration of the award by^the arbitrators after it has been made and published, without the consent of the parties, would vitiate it; but that was an alteration of the original award, and not, as in this case, the making of a new, separate, and supplementary paper. We are satisfied that the execution of this subsequent instrument did not vitiate the original award, which remained unaltered by the arbitrators. Whether it should be treated as mere surplusage, or as an effective instrument, is not a question before us; for the judgment only included the amount of the original award, and the plaintiff does not complain because the amount of costs in this supplementary paper was not included in it.
It appears that the plaintiff executed a receipt, which included the two sums of eight hundred and fifty dollars and one hundred and eighteen dollars and twenty cents, with a release of all actions, etc., as required by the award, which he offered to deliver upon the payment of said sums and the execution of a similar release by the defendant. It is contended that it was necessary for the
The first inquiry is, whether it was necessary for the plaintiff to aver and prove an offer of a release to enable him to maintain the action. The arbitrators first award that the defendant shall pay to the plaintiff eight hundred and fifty dollars, on or before the fourteenth day of May, 1861; and they further award, that both parties shall, within ten days after the date of the award, execute to each other mutual releases. The award is dated May 4th, so that the time for the execution of the releases was the same day as that fixed for the payment of the money.
In a case very similar to the present, where the award required the defendants to pay the plaintiffs a certain sum without fixing any time for the payment, and there was a further award that the plaintiffs should, on demand, assign certain claims to the plaintiff, it was held, that no demand of the money before suit brought was necessary, as by the award the defendants were directed to pay a certain sum without any condition or qualification whatever. And it was further held, that it was not necessary that the plaintiffs should aver a tender or offer of performance on their part. (Nichols v. Rensselaer County Mut. Ins. Co., 22 Wend. 125; see, also, Crosby v. Watkins, 12 Cal. 85.)
It would seem, from the principles laid down in the case from Wendell, that an offer to perform was not necessary, to enable the plaintiff to maintain an action in a case like this. The award of the payment of the money, in the present case, was absolute, unqualified, and unconditional. The award of mutual releases was, however, different; for they were clearly concurrent acts, and neither party could compel the other to execute a release without showing either an offer of a release by him, or a readiness and willingness on his part to execute it. The action-is merely to recover the money awarded j and the tender of a release, as provided by the award, was not a condition precedent to the right to recover the money. The right to recover the money is not defeated
The judgment is affirmed.
