Gear v. Bracken

1 Bur. 88 | Wis. | 1842

Dunn, C. J.

This is an action of debt upon an arbitration bond, brought by the plaintiff, Gear, against the defendant, Braelcen, in the district court of Iowa county. At the April term, 1842, the defendant filed his general demurrer to plaintiff’s declaration, after oyer craved, and setting out the agreement to submit to arbitration, bond and award ; which demurrer was sustained by the court and judgment entered for the defendant. To the decision of the district court sustaining the demurrer, the plaintiff excepts, and prosecutes this writ of error to reverse the decision.

From an inspection of the record, it is apparent that the plaintiff’s declaration is justly obnoxious to this objection. A material averment is wanting, that the arbitration was had and the award made according to the rules and regulations established by the by-laws of the Galena Chamber of Commerce. The award is liable to these objections: It does not show upon its face that the arbitration was conducted and the award made agreeably to said rules and regulations. It exceeds the powers given by the submission, in awarding that upon the payment by Bracken to Gear of the sum awarded, each should execute to the other a general release, in writing, of all manner of demands whatever, to the date of the award, in awarding costs against Bracken, and in awarding that payment should be made by Bracken to Gear, of the sum awarded within fifteen days after the date of the award.

There is no principle of pleading better settled than that a plaintiff is required to set out in his declaration every matter material to show his right of action, with sufficient legal certainty. In this case, the committee of awards of the Galena Chamber of Commerce derived their sole right to arbitrate in the premises from the agreement between Gear and Bracken, to submit the matters in dispute to their award and decision. They were bound to conform, in every respect, to the agreement, and could not exceed the powers conferred, or award less or stop short of the matters submitted. Then it is material that the declaration should aver that the committee did arbitrate and award on the matters submitted, according to the rules and regulations of the said chamber of commerce, as prescribed in their bylaws, this being a substantive part of the agreement of submission. The objections to the award are well founded. It must show that the said committee of awards arbitrated and awarded agreeably to the rules and regulations of the said chamber, as prescribed in their by-laws. To aver generally that the arbitration and award was “in proper manner and form,” is not sufficient. The award exceeds the authority and power conferred by the agreement to submit, in awarding that the said Gear and Bracken, upon payment by Bracken, to Gear, of the sum awarded, should each execute to the other a general release of all demands whatever to the date of the award. The matters submitted were the matters in dispute. This part of the award is so comprehensive as to embrace all matters of demand, even those not in dispute. It goes beyond the powers conferred in awarding costs against Bracken, and requiring payment by him of the sum awarded to Gear, in fifteen days from the date of the award. The authorities on these points are full in 1 Chitty’s Pleading, and Kidd on Awards, 140, 279.

We are, therefore, of opinion that the judgment of the district court be affirmed, with costs.

Note.—See subsequent decisions on points involved in this case. Dolph v. Clemens, 4 Wis. 181; Pettibone v Perkins, 6 id. 616; Darling v. Darling, 16 id. 644; Dundon v, Starin, 19 id. 261; Bancroft v. Grover, 23 id. 463.