60 N.H. 278 | N.H. | 1880
Several technical objections are urged, in support of the demurrer, to defects in the bill, either because of the want of certain allegations, or because of the insufficiency of certain other allegations, which we have considered, but do not need to discuss, as none of them go to the merits of the case. If in any way material, they can readily be obviated by amendment. This part of the case will be disposed of at the trial term.
It is urged as a ground of demurrer that the plaintiff has an adequate remedy at law, and must first establish his right to the exclusive possession of the tent in such suit. A suit at law will not afford the remedy he seeks. It will not prevent the defendant from interfering with his quiet enjoyment of this property. A verdict and judgment, at most, will only compensate him in damages *280
for such disturbance. The judgment will not necessarily prevent further interruptions, and will not obviate the necessity of bringing further suits, if the interruptions are continued. The award and tender establish the plaintiff's exclusive right to the control of the tent, and leave no disputed right to be settled. No resort to a quit at law is therefore necessary. The arbitration was a suit, and the award a judgment. Truesdale v. Straw,
It is alleged in the bill that the parties agreed in writing to submit all matters in controversy in regard to the tent to any three persons whom the executive committee of the camp-meeting association might appoint "to adjudicate and equitably adjust the said differences," c.; that the committee thereupon appointed three persons as arbitrators, and caused their clerk to notify them that they had been appointed "to adjudicate and settle all matters existing between the parties." It is objected that the arbitrators were not properly notified of their appointment, nor correctly notified of the matters submitted to them. It is immaterial by whom or in what form they were notified of their appointment. The notice was broader than the submission, but it had no legal or actual effect upon the arbitration, or the rights of the parties. The duty devolved upon the committee was to appoint the arbitrators. It is not claimed that the appointment was not properly made. The power to appoint they did not delegate. Notice to the appointees they themselves might give, or cause to be given through their official organ. The authority of the arbitrators came from the submission, where the matters submitted are defined, and not from the letter of the committee's clerk. Besides, if there had been any valid objection by reason of the discrepancy between the language of the submission and that of the letter, it would have been cured by going on with the hearing without objection.
Did the arbitrators exceed their authority? All matters in controversy between the parties in relation to the Concord tent were *281 submitted to the arbitrators, who were authorized "to adjudicate and equitably adjust said differences." The award provided that the defendant should execute to the plaintiff a bill of sale of all her right, title, and interest in the tent, which was fifteen shares, that the plaintiff should pay her the sum of $2 per share therefor, and the further sum of $1.90. "And the board of referees further find that said Ford holds and controls all the remaining shares, making up the balance of the old stock. And the board of referees further find that said Mrs. Burleigh shall immediately quit the Concord tent in a quiet manner, and that all parties shall not further trouble the matter by discussion."
The arbitrators had power to require the defendant to sell her shares to the plaintiff. Her property in the tent passed to him by virtue of the award and tender, and the requirement that she should execute a bill of sale was unnecessary. No deed or memorandum in writing was necessary to pass the title. If it were real estate, the defendant could not dispute the title established by the award. Girdler v. Carter,
It is objected that the bill does not allege what matters were considered by the referees, nor whether they considered only the matters embraced in the submission, nor that any condition of things was a matter in controversy between the parties in relation to the tent, nor that such alone were taken into consideration by the referees, nor that the matter of the purchase and sale of the defendant's interest in the tent was a matter in controversy, nor that partition could not be made without prejudice or inconvenience, and, further, that the award does not show what matters were considered by the referees. We have not been cited to any authorities in support of these positions. Arbitrators are presumed to have pursued the submission, until the contrary appears. Parsons v. Aldrich,
When the technical objections are disposed of by amendment or otherwise at the trial term, the exceptions will be overruled. The money which, by the award, the plaintiff was to pay to the defendant, should be deposited with the clerk for her.
DOE, C. J., and CLARK, J., did not sit: the others concurred.
