50 Vt. 460 | Vt. | 1878
The opinion of the court was delivered by
We think that the agreement by which these cases were referred, clearly provides that all questions of law as well as of fact, were to be finally determined by the referees. By applying the ordinary rules of construction to this agreement, no other interpretation can be given to it. Effect is to be given to all its provisions, if possible, and by no other construction can this be done.
It is claimed, inasmuch as both the agreement and rule of court required these cases to be decided according to law, that it must be presumed that the referees intended so to decide them ;
Says Story, J., in Kleine v. Calara, 2 Gallis. 61: “ It is certainly competent for the parties to submit the law, as well as the facts, to the judgment of referees, and to agree to abide by their judgment. There is neither inconvenience nor impolicy in supporting such an agreement. It is only substituting judges of the parties’ own choosing for those who regularly administer the law of the land.”
It is also claimed, inasmuch as the rule issued by the clerk in these cases provides that they shall be tried according to law, but neither refers to the stipulation, nor contains a provision that the decision of the referees shall be final, that such rule is the authority under which the referees acted, and, so far as it differs from the agreement, supersedes it. But, were it not for the agreement, no rule of reference would have been made or could have issued. The court has no power to send a case to referees, except by agreement of parties ; and all the provisions of such agreement are to be regarded by the court as binding, unless varied or waived by the parties. The court had no power to supersede this agreement by its rule. The agreement was filed in court and became a part of its record of these cases. We fail to see that the parties have done anything to vary, or that amounts to a waiver of this agreement. There is no inconsistency between the rule issued by the clerk and the agreement. The former contains all that was necessary to inform the referees of their duty as to these cases, although it does not state that their decis
Wellman v. Bulkley, 6 Vt., 299, to which we have been referred, is not in conflict with the views here expressed. In that case, exception was taken to the report of the referees, for the reason that the rule did not follow the agreement of the parties. The agreement was to refer the case to three referees ; but the rule provided that the “ report of the major part of them ” was to be final. It was held that if this formed an exception to the report, which was signed by only two of the referees, it was addressed to the discretion of the County Court, and their decision thereon was final. That part of the rule of reference which was in conflict with the agreement to refer the case, pertained, in part at least, to the action of the referees ; and after the complaining party had taken out the rule, and the case had been heard under it without objection, and two of the referees had signed a report and caused the same to be filed, the County Court might, with propriety, hold that the agreement had been varied by the conduct of the parties, so as to correspond with the rule of reference issued by the court. • But the cases at bar stand differently. That part of the agreement omitted in the rule, as before stated, pertains wholly to the action of the court upon the report when filed, and is not in conflict with the rule.
Both the agreement and the rule were before the County Court and made a part of the cases ; and judgments therein having been entered for the plaintiff upon the reports, we think the same should be final, according to the agreement; and they are affirmed.
