Fidler v. Cooper

19 Wend. 285 | N.Y. Sup. Ct. | 1838

By the Court,

Bronson, J.

The replication is bad for duplicity, and the demurrer is special. The pleader has attempted to put several things in issue : first, that the demands mentioned in the declaration were not in fact submitted ; second, that the parties did not intend to submit those matters; third, that the arbitrators did not award up on those matters; and fourth, that the arbitrators did not direct a release as mentioned in the plea, nor any release of the cause of actions mentioned in the declaration.

The replication is also objectionable on other grounds. It alleges that the demands mentioned in the declaration were not intended to be submitted. What the parties intended to do, depends on the true construction of the submission ; and what they have done, cannot be controlled by any averment in pleading. Again : the plaintiff says, the arbitrators did not award any release whereby the causes of action mentioned in the declaration were released. This is an attempt to put in issue matter of law for the decision of a jury.

If the plaintiff wished to deny the submission, he should have tendered a direct issue upon that fact alone; and so of the award. If the question which he wished to present, was upon the legal effect of the submission, he should have demurred after setting it out; and if he wished to try the legal effect of the award, he should have craved oyer, set it out and demurred.

It is probable, judging from the argument, that the pleader intended to say, that whatever may be the construction of the submission, although it may be broad enough to in elude the promises mentioned in the declaration, yet those matters were not in fact laid before the arbitrators, and they made no award concerning them. An award properly made in pursuance of the authority conferred on the arbitrators, is conclusive as to all matters to which the submission extends, whether any particular matter included in the submission was laid before the arbitrators or not. Wheeler v. Van Houten, 12 Johns. R. 311. The case of Ravee v. Farmer 4 T. R. 146) does not conflict with this principle ; nor does Golightly v. Jellicoe, cited in a note to that case. *30t^1 instances> the submission was of all matters, in difference, and the plaintiff was allowed to prove that the particular matter for which the action was brought, was not in difference. The evidence did not contradict or limit the ef- . feet of the submission; but only identified the particular subject to which it related. It was not a general submission of all demands, but only of such matters as were in difference ; and inasmuch as the particular matters in difference were not specified, evidence was received to show that the demand for which the action was brought was not among the number, and so not included within the submission. Both of these cases admit the principle, that the award is final as to all matters to which the submission extends. In Dunn v. Murray, 4 Man. & Ryl. 571, there was a reference of all matters in difference, and it was- held conclusive as to a demand coming within the scope of the reference, although it was not in fact laid before the arbitrator, and he made no award concerning it. See also Trimingham v. Trimingham, 4 Nev. & Man. 786. Harris v. Wilson, 1 Wendell, 511, was decided on the ground that the note on which the action was brought, was not included in the submission. I agree fully in what was said by the court in Wheeler v. Van Houten, that it would be a dangerous. precedent to allow a party, on a submission so general, ntended to settle every thing and avoid litigation, to lie by, and submit only part of his demands, and then institute a suit for the part not brought before the arbitrators. This, like other general rules, may sometimes operate harshly; but it is nevertheless a salutary principle, from which we cannot depart without the dangerj of defeating the beneficial ends intended to be answered by allowing parties to submit their controversies to judges of their own selection.

■ No objection has been taken to the form of the plea; and after what has been said, it is only necessary to inquire whether the submission was broad enough to include the demands for which the action is brought. The submission is almost as general as language could make it. It includes among other things, all cause and causes of action, contracts, promises, accounts, reckonings, sums of money, damages and demands whatsoever between the parties. But it is said that inasmuch as the plaintiff and Ryckman were joint obligors in one of the bonds, and obligees in the other, the submission did not include the demands of the plaintiff alone against the defendant. The rule is settled otherwise. It is said in Baspole’s case, 8 Coke, 193, that if two on the one part, and one on the other part, submit themselves, the arbitrator may make an arbitrament between one of the two of the one part, and the other of the other part, and it will be good. And so the rule is laid down in Chapman v. Dalton, I Plowd. 289, citing 2 R. 3. The case in the Year Book, 2 R. 318, referred to by Plowden, is thus stated by Kyd on Awards, 157; where the submission was between three on the one side and one on the other, ' of all actions and demands between them, it was held that the arbitrators had an authority to make an award of all joint matters between the three and the one, and also of all matters severally between the one and any one of. the three; and Brook, in abridging the case, says this is good law; but he denies that what follows is good law, viz: that the arbitrator has an authority to decide on any matter between any two of the other three. See also Vin. Ab., Arbitrament, (D.) pi. 5 and note. In Libtral v. Field, 1 Keb. 885, p. 1, 47, it was held, that an award between one of one side and one of another is sufficient, on a submission by several. In Athelstone v. Moon & Willis, Comyn. R. 547, a motion was made for an attachment for not performing an award. The award was that Willis should pay a sum.of money due by him to the plaintiff. The submission was of all matters between the parties, without saying between them or either of them; and objection was taken that this must be understood' of joint demands of the plaintiff against both defendants, and so the award was not good. But the court disallowed the objection,- and said, a submission of several persons of all matters in difference between them, imports a submission of all matters that either had against the other jointly or severally. See also Carter v. Carter, 1 Vern. 259, and 1 Eq. Ca. Ab. 49, p. 1, 2. Joyce v. Haines, Hardr. 399. Bac. Ab., Arbt. & Award, (E.) Com. Dig., Arbit. (D. 4.) I do not find that this doctrine has been denied in any of the more modern cases.

A leading object in submissions to arbitration, is to make peace and put an end to legal controversies; and the agreement of the parties ought to be liberally construed in furtherance of that object. In the case at bar, the submission is almost as comprehensive as words could make it. There is nothing indicating the intention of confining the arbitrators to joint demands of the plaintiff and Ryckman against the defendant. If the parties intended any such limitation, it is reasonable to suppose that they would have inserted some qualifying words in the submission.

The replication being bad, must be laid out of view. The case then stands on the plea. That sets up a submission broad enough to include the demands for which this action is brought; and the legal intendment is, that they were actually adjusted by the arbitrators. For the reasons already assigned, I think the plaintiff is not at liberty to allege that those demands were not in fact laid before the arbitrators and passed upon by them. But the plaintiff, if .he shall be so advised, may amend and put that question on the record.

Since issue was joined on the demurrer, the plaintiff has proceeded to trial and obtained a verdict on the issue in fact; and it is therefore objected that he cannot have leave to amend.' When judgment is given against the defendant on demurrer after a verdict for the plaintiff on an issue of fact, it is settled that the defendant shall not have leave to amend. Hallet v. Holmes, 18 Johns. R. 28. And in England, it seems that this rule is applicable to the plaintiff where judgment is given against him on demurrer. 2 Saund. 300, note 3. 1 Saund. 80, note 1. But the question of amendment is, in general, addressed to the discretion of the court, and the plaintiff has been allowed to amend under smilar circumstances. Booth v. Smith, 5 Wendell, 107. If the plaintiff elects to amend, he must, in addition to the usual terms of paying the costs of the demurrer, relinquish the verdict and pay all costs subsequent to the joining of the issue.

Ordered accordingly.