36 Ill. 439 | Ill. | 1865
delivered the opinion of the Court:
The whole controversy in this case turns upon this clause in the award: “And the said J. A. Kanouse, on and after the payment of seven hundred and twenty dollars aforesaid, to the said Uzziel Kanouse, is to retain, for his own use and benefit, all property mentioned in schedule ‘A,’ annexed to the bond executed by the said J. A. Kanouse to the said Uzziel Kanouse, dated on the 10th day of December, 1857, together with any and all other property on or about the said described land.” On the one side it is insisted, that the money awarded to plaintiff was in lieu of his interest in the property in dispute; whilst on the other it is urged, that such is not its fair interpretation. •When compared with the bond, and when it is remembered that plaintiff claimed an interest in the property, and the question of the extent of that interest had been referred to the arbitrators for an adjustment, and we find that they awarded to defendant, Kanouse, nearly all of the property, and to plaintiff a specific sum of money, we are irresistibly forced to the conclusion that the sum of money was given in lieu of plaintiff’s interest' in the property. We should feel 'but little better assured of the fact, had the arbitrators said so in terms. We, in fact, can see no other reasonable solution to the matter, nor does the language of the award lead us to any other conclusion. Had they found that plaintiff had no interest in the property, what motive could have induced them to award him the money ? Again, they do nob say that the property was found to belong to defendant, Kanouse, but they say he may retain it for his own use, when he shall pay plaintiff the money. The necessary implication would seem to be, that the money was awarded in lieu of the property found to belong to plaintiff.
In giving a construction to the award, the court is fully warranted in considering the surrounding circumstances, and in reading it in the light they afford. And of these circumstances are the articles of submission and the execution of the bond, and its contents. By the first, we find the parties both claiming an interest in or ownership of the property, about which they differed, and had agreed to have settled by the award of the arbitrators. And that the latter was executed under the order of the arbitrators, and from, the order we see that they were unable to proceed without delay to settle the rights of the parties, and to make a division of the property. It therefore became necessary to provide for the custody of the property until the matter should be terminated. Hence the execution of the obligation, that it should be forthcoming to abide the award, or to pay such sum as should be awarded, in lieu of plaintiff’s share. Having disposed of the property, it was reasonable, if not necessary, that they should award money in its stead. . And from a careful examination of the case, we must conclude that the money was awarded in lieu of the property, and that by the terms of the obligation, defendants were liable for its payment. Defendants bind themselves by the bond to deliver the property on its being awarded to plaintiff, or pay any sum of money awarded to him, in lieu of the property, provided defendant, Kanouse, should dispose of any of the property. He did dispose of a portion of the property, and the plaintiff is entitled to recover.
The judgment of the court below must be reversed, and the cause remanded.
Judgment reversed,.