Thе appellant, who was the plaintiff below, demurred separately to the defendants’ two pleas. The demurrers were overruled; and, the plaintiff declining to further plead, a judgment was rendered for- the defendant. If either of the pleas, the demurrers to which were overruled, averred faсts constituting a defense to the action, the judgment of the court below must be affirmed. Both the pleas go to the entire action; and therefore the plaintiff has not been prejudiced by the erroneous overruling the demurrer to one of the pleas, if the other was good. — See the cаses of Firemen’s Ins. Co. v. Cochran & Co'.,
We proceed to consider the sufficiency of the first of defendants’ two pleas; and if the conclusion is attаined, that it interposed a valid defense to the entire action, the judgment of the court below tnay be affirmed, without an examination of the seсond plea, as its deficiency would not change the result.
This case has once before been in this court. — See
We think that the averment of a sufficient legal excuse for the omission to perform, or to offer to perform, the obligations imposed by the award upon the defendant, wоuld have had the same effect, when pleaded in connection with the award, as would the averment of performance, or of an offеr to perform; and we think this court would have so decided, in its former opinion, if the question had been presented.
The submission to arbitration, which is set forth in thе plea, contains an agreement, that the award of the arbitrators, made in pursuance to the contract of submission, “ should terminate and forever decide all matters of controversy, at law or in equity,” in relatiоn to the livery-stable therein named. The agreement is sufficiently comprehensive to include, as one of the matters to be settled by the award, the right of
The matter alleged in the рlea now under consideration, which was not in the plea heretofore passed upon, is, that no lawful title to the lot, to be exchanged by Jеsse with Mrs. Cater, was in Jesse, and that it was in another person, at the time of making the award, and has since so remained. This, we think, constitutes a sufficient and legal excuse for the omission of performance, or of an offer of perfonnance by Mrs. Cater; The duties imposed were to be simultaneously performed. The acts to be done were intended to be concurrent, — Hay v. Brown,
A different decision would permit Jesse, after agreeing that the award should settle the matter of сontroversy, to avoid its effect, if he deemed it unfavorable to himself, by
The arbitrators, in making the award that a fee-simple title should be made, are not presumed to havе intended the making of a deed, without regard to title. Mrs. Cater had a right, under the award, not merely to a conveyance, but to a good title. — Hunter v. O’Neil,
For the appellant it is contended, that the question whether Jesse had title to the lot was adjudicated by the arbitrators, and that Mrs. Cater is estopрed from setting up the contrary. The judgment of the arbitrators is not that Jesse has title to the lot, but that he “ can and do” make title to it. The language used in the award, does not necessаrily imply that the title was in Jesse at the time of the award, or that lie then had the present ability to make title. A judgment can of itself only operate as an estoppel as to matters necessarily within its scope. The judgment of the arbitrators, which was confirmed by the court, is not inconsistent with the idea, that Jesse did not actually have title, but could make title at a future time, because he could procure it. The averment that Jesse was without title, was not necessarily in conflict with the decision of the arbitrators, and therefore Mrs. Cater was not estopped from pleading it. — McCravy v. Remson,
An application of the principles which are laid down in this opinion, sustains the defendant’s first plea, and therefore the judgment of the circuit court is affirmed.