Edwards v. Harrington

45 Vt. 63 | Vt. | 1872

The opinion of the court was delivered by (

Peck, J.

The counsel for the plaintiff is corx’ect in his proposition that the statute allowing special matter to be given in evidence under the general issue and notice, only dispenses with the form of a special plea, but not with the substance. It is not claimed that there was any variance between the award given in evidence and that described in the notice. The only objection alleged against the notice is that it does not set forth the award in terms or the substance of it, but only its effect. The award is not made a part of the case and has not been shown us, so that we have no means, of determining whether this objection is well founded in fact. For aught we can tell, the award was in the very words of the notice. If so, the plaintiff’s objection has no foundation in fact. All we can do is to look at the notice and see whether it is bad on the face of it. The notice, after setting forth the submission, &c., in stating the award, says the parties met before said arbitrators and had a hearing concerning the matter in controversy in said suit, and after the said hearing, in the same month, the said Isaac Patterson and J. F. Stevens made and published their award, “ which was to the effect that the defendant was not liable to pay to the plaintiff any damage for the injury complained of by said plaintiff. ” The objection. made to this notice is that it does not profess to state the words of the award, nor it’s substance, but only its effect. But, under this notice, the defendant would be bound to prove an award in substance as alleged. This pi’oof must be precisely the same as if in the notice the words, in substance, had been inserted in place of the words, “ to the effect. ” 'This being so, it must be assumed that the award produced in evidence was, in substance, the same as that described in the notice, and therefore the notice is not obnoxious to the objection urged against it. To the effect, means, in legal effect; and in civil suits, and often in criminal cases, it is sufficient* to plead a written instrument according to its legal effect.

The other objection to the ruling of the county court, that relating to the arbitrators not professing to decide according to law, in the first place involves a question of construction of the submission. The question of construction is as to the paragraph, “and the costs in the county court shall follow the decision of the arbitrators, and shall follow the judgment of said arbitrators to be made as in a court of law. ” The subject-matter of the submission was this suit, which was pending at the time of the submission. The object of adding the provision above recited, obviously, was to provide explicitly a guide for the arbitrators as to the costs in the county court. It is the costs in the county court that shall follow the judgment of said arbitrators to be made as in a court of laiv. If the words to be made had been omitted, there could be no doubt that the whole force of that provision would relate to the costs in the county court, and have no reference to any rule of decision upon the merits, that the arbitrators were to follow. We think, notwithstanding those words create some doubt as to the meaning, that nothing more was intended than that whatever decision the arbitrators shall make, the costs in the county court shall follow that judgment the same as in a court of law, the same as costs follow the event of a suit in a court of law. If this is the' true construction of the submission, this objection to the award must fail, as it does not appear but that as to the costs of the county court, the arbitrators professed to, and did, follow the submission. But treating that as a provision that the arbitrators should decide according to law, it is very doubtful whether the award could be impeached at law for this cause, as it was regular on the face of it, and no pretence that the arbitrators exceeded their powers by deciding upon matters not submitted, nor that they omitted in their decision any matter submitted; and as the exceptions show that the award “ purported to have been made in accordance with the said submission. ” None of the cases cited by plaintiff’s counsel goes to that extent. But if it could be thus impeached, it would seem that it ought not to be set aside as void, unless it appears that the arbitrators did not decide according to law, or as in a court of law. The fact that the plaintiff introduced evidence “ tending to show that the arbitrators did not'profess to be governed by the rules of law, but made their award with reference to what they viewed as the equity of the case,” is not very satisfactory evidence that they decided contrary to law, and would hardly warrant such conclusion. Equity and justice generally turn out to be law, though not always.

Judgment affirmed.