Hubbert v. Collier, 6 Ala. 269

Hubbert v. Collier

6 Ala. 269 | Ala. | 1844

COLLIER, C- J.

There are cases in which proof aliundé has been admitted to aid an award. [2 Phil. Ev. C. & H.’s notes, 1030 ] But are the defects in the writings adduced in *273the present case, of such a character as can be supplied by extrinsic evidence ? The attempt of the parties to submit their controversies to arbitration, was intended to conform to the act of 1824, [Clay’s Dig. 51,] though it was exceedingly informal. The second section of that statute provides that, “In all cases where the amount of the judgment rendered shall exceed fifty dollars, the same shall be returned by the referees, under their hands and seals, to cither the county or circuit court of the county, in which such justice of the peace may dwell at the time of taking the agreement as aforesaid; and the court to whom the report of the referees may be made as aforesaid, shall have cognizance thereof, in the same manner, and under the same rules, as if the referees had been appointed by a rule of said court-” The submission itself contemplates a written report by a majority of the arbitrators as a warrant for the judgment of the proper court. Now, but one-half of the referees have signified their assent to the paper which is called the award. In considering the evidence offered by the defendant below, these questions suggest themselves. Does it show a state of fact from which it can be concluded that the referees have adjusted the matters in controversy between the parties, and what is their award? If defects exist in this respect, is parol evidence admissible to remove them? As the submission requires an award in writing, made by a majority of the referees, in order to make it the basis of a judgment, can it be shown that it was assented to by some of those whose names are not subscribed? These questions, we merely suggest, without stopping to consider them, as there are other' grounds upon which we can rest our judgment.

2. Admitting the award to be regular in point of form, is it obligatory upon the plaintiff? It is laid down in general terms, that a party may avoid the effect of an award, by showing that he was an infant when he made the agreement of submission. [3 Phil. Ev. C. & H.’s ed. 1034, and cases there cited.] Watson, in his Treatise on Arbitration and Award, [p. 41,] says, “It is quite clear, that a submission by an infant, is either void o'r voidable”; and his submission will not bind him, unless he ratifies it after he attains his majority. The only doubtful question, as far as regards the infant himself, says the learned author, is, whether the submission is merely void, or voidable only — the decisions on this point being both ways. In Godfrey v. Wade, [6 J. B. *274Moore’s Rep. 488,] it appears that a cause in which an infant, by his prochein amie, was plaintiff, was referred by a parol agreement: the court considered it clear that the infant was not bound by the award, but directed that he should have notice of the award, and if he would not perform it, that the defendant should be at liberty to carry down the record to trial by proviso. But it has been decided that, though an infant cannot submit, his guardian or other person may submit for him, and the person submitting shall be bound by the award; the authorities upon this point are, however, somewhat contradictory. [Watson’s Arb. & Aw. 41-2.]

It is argued for the plaintiff in error, that, conceding it is incompetent for an infant to bind himself by submitting his case to arbitration, the fact of infancy could only be established by the verdict of a jury affirming that such was the condition of the plaintiff below. There can be no doubt that, where the question of infancy vel non arises directly in judgment, but it must, on a trial at law, be determined by a jury. But in the case before us, the infancy of the plaintiff was not controverted, and the form of the pleas did not allow him to assert the fact in a replication. Both the writ and declaration describe the plaintiff as an infant under the age of twenty-one years, suing by his next friend. The pleas, without questioning the minority of the plaintiff, deny the commission of the trespass; or conceding the defendant’s guilt, affirm that he has made satisfaction therefor. This we think was, at least, an implied admission of the legal incapacity of the plaintiff, considering the manner in which that question arose; and as the award was not obligatory upon the plaintiff, the submission and consequent ’proceedings were properly rejected. Upon this point, the case of Isaacs, by her next friend, v. Boyd, et al., [5 Porter’s Rep. 388,] cannot very well be distinguished from the present in principle.

What we have said might be sufficient to show that there was no available accord and satisfaction. But grant that the submission was binding upon the plaintiff, and still the plea of accord and satisfaction would not allow it to be proved. That plea supposes that the parties had agreed upon something to be done, omitted, or rendered, in satisfaction of the cause of action sought to be enforced. Here, there has been no agreement as to the terms of adjustment; it is merely stipulated that certain per*275sons, designated by the parties, shall settle their controversies, and the decision of these persons shall be recognized as obligatory. [See 1 Saund. on Plead. & Ev. 26, et post.'] In all actions of trespass, whether to the person, personal, or real property, matters in discharge of the action, (it is said,) must be pleaded; as accord and satisfaction, arbitrament, release, former recovery, tender of sufficient amends, and the statute of limitations. [I Chitty’s Plead. 3d Am. ed. 496; 5 Dane’s Ab. 611.]

It does not appear that the defendant objected before trial, that there was no replication to his second plea; and, according to repeated decisions of this court, he cannot now allege the want of a replication, as an error, fatal to the judgment. [Abercrombie v. Mosely, 9 Porter’s Rep. 145; Clark’s Adm’rs v. Stoddard, Miller, & Co. 3 Ala. Rep. 366; Hall v. Dargan, 4 id. 696.]

The circuit court might, in its discretion, have permitted a declaration to have been filed, at any term subsequent to the return of the writ, and its decision could not be revised on error. [Jones, et al. v. Merrell, Adm’r, 1 Ala. Rep. N. S. 217.] Besides, the defendant, by pretermitting an objection to the declaration in the primary court, must be understood to have consented to go to trial upon the one in file.

In the action of trespass, time is not material, and the plaintiff may prove that the act complained ofi was committed on a day anterior to that alleged. Whether a declaration is demurrable for not stating the trespass was committed on a day certain, we will not stop to inquire. After verdict, we are quite sure the allegation, that it was committed on a certain month, without particularizing the day, is sufficiently specific.

It results from this view, that the judgment of the circuit court must be affirmed.