Garitee v. Carter

16 Md. 309 | Md. | 1860

Bartol, J.,

delivered the opinion of this court.

In the opinion of this court, the motion to dismiss this appeal ought not to prevail. The question has been settled by the case of The State, use of Hickley, vs. Stewart & Gross, 12 G. & J., 456, where an appeal from the judgment of the county court setting aside an award, was sustained. ¡

We think the court below erred in sustaining the objeclions to the award and setting it aside. It is shown by the return to the writ of diminution, that the reference in this case was made under a rule of court. The only exceptions to the award, presented for our consideration, are: 1st, because the arbitrators did not decide therein, on all, or any part, of the matters submitted to them, and decided on matters not within the submission. 2nd. Because said award is not certain to a common intent and final.

The rule by which this court is governed, in dealing with awards, has been often announced. It has been more than once said, with approbation: “That a more liberal, and reasonable interpretation of awards is now adopted by the courts than formerly existed. Every reasonable intendment will be made in their favor, and a construction given to them that will support them if possible, without violating the rules adopted for the construction of written instruments.” 10 G. & J., 193. 5 Md. Rep., 359. 8 Md. Rep., 225.

Applying this rule to the present case, we are unable to perceive any ground for the second exception taken to this award. It has all the certainty which the law requires, and is a final determination of the cause referred to the arbitrators.

With reference to the first exception, we are clearly of opinion that so far as the award ascertains and decides that, “there is due and owing by the defendant, Durus Carter, to the plaintiff, William Garitee, the sum of five hundred dollars,” and awards, “that judgment be rendered by the court in favor of said Garitee, plaintiff, for the sum of five hundred dollars and costs to be taxed by the clerk,” it is a decision of the matters submitted to them, plainly within their authority.

We think, however, that part of the award which detertermines that judgment be entered against the defendant for “the costs of this reference and award, which is the sum of forty-five dollars, being the sum of fifteen dollars for each of said referees,” was not within the submission, and that the award was, pro tanto, void. George vs. Lousley, 8 East., 14. Bell vs. Balson, 2 Chittifs Rep., 157. See, also, the authorities cited hi note (a.) in 18 Eng. C. L. Rep., 283.

(Decided June 29th, 1860.)

In the case of Cromwell vs. Owings, 6 H. & J., 14, it was said: “Rut it is well settled that if an award be botli of matter that is submitted, and of that which is not within the submission, it may be good as to all that is within the submission, and void as to the residue.”

This rule applies where that part of the award which is within the submission, is of entirely distinct matter, not depending upon that which is awarded without the terms of the submission. That is the case here, the award was had only in so far as it awarded to the arbitrators their expense-, to be paid by the defendant,; in other respects it was good. The judgment will be reversed, and a judgment entered in favor of the appellant, in conformity with the views expressed in this opinion.

Judgment reversed and judgment for appellant.