Hinman v. Hapgood

| Court for the Trial of Impeachments and Correction of Errors | May 15, 1845

By the Court, Jewett, J.

■ The defendant relies upon the objection that' no express promise or request by the defendant to the plaintiff to render such services had been proved, and therefore his 'services must be deemed to have been rendered gratuitously. Virany, ex’r, v. Warne, (4 Esp. Rep. 47,) is cited as decisive of this point. In that-case the plaintiff’s counsel in stating the case to the jury, said that the action was brought to recover a sum of money due to the testator for acting as an arbitrator on the part of the defendant in a certain dispute with another. Lord Kenyon decided that the plaintiff was "not entitled to recover any thing unless he could prove an express promise. That the appointment of an arbitrator was not of such a nature as to raise a demand for payment.

Whatever may be the law in England, I do not doubt but in this state an arbitrator selected by the parties to perform such services and having performed the services, attended by the parties, may recover a reasonable compensation therefor, in the absence of an express promise to pay; and it has since the. time of the case referred to, been so adjudged in England. (1 Niel Gow. 7, 8; Chitty on Contracts, 165, 166.) The evidence in this case shows that the plaintiff was appointed an arbitrator by the parties to the controversy, that the arbitrators were engaged five days as such, attended by the defendant and the other parties to the submission, and until the powers of the arbitrators were revoked by the defendant. I cannot doubt but the evidence showed a sufficient employment of the plaintiff as an arbitrator to entitle him to compensation for services rendered as such arbitrator.

An objection is made here, for the first time) that the plaintiff in error could not sustain a separate action for his services; that the other arbitrator had a joint interest with him. Several cases have been cited, supposed to sustain this point, but I am unable to see the application of the principle decided by those cases to the question before us. I have no doubt but that the claim of each arbitrator is several and not joint, and that a joint action by the arbitrators for their compensation could not be sustained. The defendant cannot object that the other parties to the submission should have been joined. This could only be availed of by plea in abatement.

The judgment of the common pleas must be reversed and that of the justice affirmed.^(a)

Judgment accordingly.

(a) The same questions which are decided in this case arose in the case of Martin v. Sadler and others, and were determined at this term in the same manner, the Chief Justice delivering the opinion of the court.