15 Del. 115 | Del. Super. Ct. | 1893
(charging the jury).
This is an action of assumpsit brought by Daniel L. Lawson, the plaintiff, to recover from John W. Fooks, the defendant, the sum of $102.54, allowed the said Lawson by an award alleged to have been made by arbitrators, in accordance with an alleged agree-, ment by said Lawson and Fooks to submit certain matters in controversy between them, to said arbitrators and to abide by their determination and award concerning the same.
It appears from the evidence that some time in the fall of 1890 Dr. Fooks had employed Lawson to make charcoal for him at a stipulated compensation, and that Lawson had proceeded to make certain quantities of the charcoal; but that a difference and controversy had arisen between them in regard to a final settlement
Thereupon as is alleged by the plaintiff, Lawson, he and Fooks mutually and concurrently agreed to submit all matters is dispute between them to three arbitrators and to abide by their decision and award, in respect to the matters submitted to them.
It is further alleged by the plaintiff that the arbitrators duly met in the presence of both parties and after hearing the allegations and proofs presented by each side and after considering each of the subjects and matters in controversy agreed to be submitted to them, rendered their decision thereupon and made their award of $102.54 in favor of Lawson, the plaintiff, which the defendant, Dr. Fooks, refused to pay, and thereupon suit was brought for that amount before a Justice of the Peace, and, from the judgment rendered by him, an appeal was taken which has brought the case now before you and this Court to be tried anew.
In trying this case you must remember that you are not to inquire and determine whether or not Lawson made the charcoal in accordance with and in due performance of his contract with Dr. Fooks, nor whether or not Dr. Fooks had any claim for damages against Lawson by reason of his insufficient or improper performance of said contract; nor are you to inquire and determine whether the arbitrators awarded too much or too little to Lawson nor whether they should have made another award in favor of Fooks instead of Lawson.
In the present suit you are not to decide any of those questions, but only whether, in fact, an award for the sum specified therein was actually made by the arbitrators, after hearing the allegations and proofs of both parties then present before them, and also made in accordance with and in comformity to the agreement (if you find there was such an agreement) to submit their matters in controversy to the arbitrators and abide by their decision and award.
Where parties agree at common law, as in this case (and. not under a rule of Court), to refer and submit any matter in controversy to arbitrators for decision and to abide by their award, they
In the present instance the defendant, Fooks, alleges among other things as a defence to this suit, that he has refused to comply with and pay the award claimed by Lawson, because, first, there is no satisfactory proof before you that he (Fooks) and also Lawson, mutually and concurrently agreed to abide by the award which the arbitrators should make in accordance with the agreement of-submission ; second, because his (Fooks) claim for damages was one of the subjects in dispute submitted for the determination of the arbitrators, and yet it was entirely omitted from the consideration of the arbitrators, and was not passed upon by them when they determined and made their award in favor of Lawson and ascertained the amount allowed him therein. That is the allegation and contention of Dr. Fooks, the defendant.
In reference to the first ground of defence, that there is no satisfactory proof that both Fooks and Lawson mutually and concurrently agreed to abide by the award, we must remind you that
But in considering the evidence upon this subject, it is proper for us to say to you further, that, as a general rule, the courts are very liberal in the construction of awards. All reasonable presumptions will be made in their favor; no unreasonable intendment will be made to overturn them, but every reasonable intendment will be made to uphold them, and therefore where it is claimed that the arbitrators have omitted, failed, neglected, or refused to consider any matter submitted to them in the agreement of arbitration, such omission, etc., must appear Upon the face of the award or by other evidence. And in the absence of proof of such omission, etc., it will be presumed that all the matters submitted were considered and passed upon; so that when an award is made and it is before you (if you are satisfied that it was made) you are to presume that the arbitrators did their duty for which they were selected and that they considered every matter submitted to them by the agreement for arbitration, unless it appears on the face of the award itself, or by other evidence, that they left some submitted matter out and omitted to consider and pass upon that particular subject. The burden is upon the defendant who assails the award on that ground to show that such omission (for instance, of damages as in this case) either appears on the face of the award or that it appears from other evidence in the case furnished either on the part of the plaintiff1 or defendant. And unless it is so shown, it is presumed from the award itself that they did consider every matter submitted; because all reasonable presumptions will be made in its favor.
But another ground of defence to this suit has been urged in behalf of Dr. Fooks. It is that he revoked his agreement to submit his controversy with Lawson to the said arbitrators, and, con
With this general statement of the leading questions before you and with these instructions as to the law applicable to this suit, we leave the matter for your consideration and determination.
Verdict for plaintiff for $116.81.