Gray & Gilmore v. George M.

65 Vt. 178 | Vt. | 1892

The opinion of the court was delivei-ed by

THOMPSON, J.

None of the things, which by the terms of the award the defendants were required to do, was interdependent upon the others, but each was independent of the other in kind and in time of performance. The fact that the plaintiffs prevented the defendants from putting the cylinder into the engine excused them from the performance of that part of the award, and the parties then stood to each other ■ under the award as they would if the defendants had in fact put in the cylinder. The defendants were still bound to perform the residue of the award on' the.ir part-. The court below, therefore, properly refused to charge the jury, that by being prevented from putting in the cylinder by the plaintiffs the defendants were excused from further performance on their part. Neither was there error in overruling the defendants’ motion for a judgment for them on the verdicts on the same ground.

Under the award the plaintiffs were not required to do anything until the defendants had done that which in law amounted to a full performance on their part.

A submission and award are in the nature of a contract. If in -pais and not statutory, and sometimes, also, when they are statutory, the only remedy or means of enforcement is by a proceeding, either in law or in equity, instituted upon them as upon any other private contr-act. Morse on Arb., 576. Upon the neglect or refusal of the defendants to perform the award in whole or in part, the plaintiffs had the right to treat the contract as at an end, and to use or dispose of the old iron and shingle machine. Therefore, the evidence was immaterial which tended to prove that subsequent to the commencement of this suit the plaintiffs uáed the shingle machine and disposed of some of the old iron, which by the terms of the award they were to deliver to the defendants upon performance upon their part, and it was not error for the court below to refuse to instruct the jury that if they found as this evidence tended to prove, the plaintiffs could not recover.

The plaintiffs did not bring an action for a specific performance of the award by the defendants. They elected to recover such money damages as had accrued to them by reason of the non-performance of the contract or award by the defendants. In consideration of performance by them, the plaintiffs were to deliver to them the old iron and the shingle machine. The award did not vest the title to either the iron or the shingle machine in the defendants, but it remained in the plaintiffs. Morse on Arb., 509; Hunter v. Rice, 15 East 100. The plaintiffs are entitled to recover the damages accruing to them by reason of non-performance by the defendants, which is the difference between the value of the things which the defendants had not performed, and the value of the iron and shingle machine which the plaintiffs were to deliver upon performance by defendants. The jury, by their general and special verdicts, have found plaintiffs’ damages on this basis to be the difference between $314.70 and $226.62, which is $88.08. There was error in rendering judgment for the plaintiffs for the amount of the general verdict.

Judgment reversed, and judgment for the -plaintiffs to recover $88.08 damages and interest and costs below, from which is to be deducted defendants' costs in this court.