Girdler v. Carter, 47 N.H. 305

47 N.H. 305 | N.H. | 1867

Bellows, J.

The main, if not the only, question, is, whether there was any evidence upon which it was competent for the jury to find that the award was set aside by the agreement of the parties. The only evidence in that direction is the testimony of the plaintiff himself that the lessor had not refunded the taxes for the year 1863 ; that when asked several times before April 1, 1865, to settle it up, he did not say whether he would or would not; and that when asked in February or March to show the plaintiff what wood to cut, he said he was not going to do anything about it, and seemed to be irritated.

On the other hand it appears from the same testimony, that, in accordance with the terms of the award, the plaintiff put an end to the tenancy by leaving the farm the latter part of April, or first of May, 1861, although the lease by its terms continued until April 1, 1868; that lessor took the cow after April 1, as provided in the award; and that after said April 1, the award was amended with the assent of both parties by supplying some words which were omitted.

Upon the whole we see no evidence tending to prove that the parties agreed to set aside the award, but on the contrary it clearly appears that they both assented to and ratified it. The neglect or even refusal of the lessor to refund the taxes, or do any other thing required by the award, would not vacate it, but the plaintiff might enforce it by action. For where by an award acts are to be performed by both parties, and those acts are distinct and independent, the one not a condition precedent to the other, either party is guilty of a breach of the award who does not perform all that he is appointed to do, although the opposite party may have entirely neglected to obey the award on his side; and in such case, in a suit for not performing the award, it is not necessary for the plaintiff to aver performance or a readiness to perform his part of the award. Cald. on Arb. 321, and cases cited; Nichols v. Rennsalaer Mut. Ins. Co., 22 Wend. 125; 2 Chitty Pl. 243, note s.; 2 Saund. Rep. 62, a, note s.; Loring v. Whittemore, 13 Gray 228.

In the case before us the act which the lessor has neglected to perform has nothing of the character of a condition precedent in respect to the passing of the title to the cow ; and we are satisfied that there is no evidence legally competent to prove an agreement of the parties to vacate the award.

No question is made as to the effect of the award in passing the title to the cow without an actual delivery. Where, in a reference between landlord and tenant, the arbitrator awarded that a stack of hay should be delivered up to the landlord on his paying a sum of money, it was held that the property m the hay did not pass on the mere tender of the money, though if the tenant had accepted it, it would have been a ratification of the award and an assent to the transfer. Hunter v. Rice, 15 East. 100.

In the case before us the arbitrators award that the landlord shall have the cow and calf on .the first of April, and hay to keep her until the 20th day of May; and this without any condition precedent, and without any provision that the tenant should deliver the same. In this respect it differs from the case of Hunter v. Rice, which awarded a delivery of the hay on payment of a certain sum of money. In the case of Girdler v. Carter, the award purports to give the title to the cow and calf to the landlord without any act remaining to be done by the tenant, and we are of the opinion that the award must be regarded as conclusive evidence of title in the landlord, if it be within the terms of the submission, and the law presumes that it is unless the contrary is made to appear. Parsons v. Aldrich, 6 N. H. 264. An award, indeed, is conclusive on the matters submitted, the same substantially as a judgment. Bannel v. Pinto, 2 Conn. 433; Wheeler v. Van Houten, 12 Johns. 311; Fidler v. Cooper, 19 Wend. 285; Cady v. Dean, 4 Conn. 259; Varney v. Brewster, 14 N. H. 49, where it was held that the legal effect of an award upon the contract submitted is to extinguish it.

The tendency of modern jurisprudence is to give effect and conclusiveness to awards when fairly made, and within the limits of the submission, and even in respect to the title and boundaries of real estate. It is true that it is generally said that the title to real estate cannot be transferred by an award, but it has been held that it will operate by way of estoppel to prevent' a party from disputing the title established by it. Doe v. Rosser, 3 East. 8; Sellick v. Adams, 15 Johns. 197; and Shepard v. Rogers, ibid., 497; Cox v. Jager, 2 Cow. 650; Jackson v. Gayer, 5 Cow. 387; 3 Cow. Ph. Evid. 1037.

Upon these views an award in respect to boundaries may be enforced by ejectment on trespass. Robertson v. McNeil, 12 Wend. 582; Jackson v. Gager, 5 Cow. 383; and such is the doctrine of Shaw v. Hatch, 6 N. H. 162, and also of Jones v. Dewey, 17 N. H. 596, where both the submission and award were by parol.

In Massachusetts it is held that an award that a party is entitled to certain land does not require any conveyance of it to give it effect. Loring v. Whittemore, 13 Gray 228.

These cases show that an award in conformity with the submission is, like a judgment, good to establish a boundary line of real estate, without any conveyance, unless such conveyance be expressly provided for, or necessarily implied.

In the case of Hunter v. Rice, before cited, the award was that the tenant should deliver the stack of hay on receiving a certain sum of money, and the court was there of opinion that if he had received the money tendered it would have been an assent, and the title to the hay would have passed. It would seem, however, to be well established that the effect of an award does not depend upon a subsequent assent, but upon the contract of submission, and that after the award is made it is too late to revoke the submission or to repudiate the award.

Since the decision in Hunter v. Rice, the law upon this subject has undergone considerable change, and it is not certain that the views there adopted would not be modified. It does not, however, govern this case, for here the title of - the landlord was fixed by the award itself without requiring for its completion any act of the tenant; and besides, the award was assented to and ratified by the tenant after it was made.

There must, therefore, be

Judgment on the nonsuit.