Kendrick v. Tarbell

26 Vt. 416 | Vt. | 1854

The opinion of the court was delivered by

Redeield,' Ch. J.

I. The controlling question made in this case by defendant is, whether it is competent for the plaintiff to recover in this action the amount of awards, in favor of other parties. The only instance in which any thing is awarded to any other than the plaintiff is in the third and fourth subdivision of the award, in the controversies in the third, betweenJD. Fay & Co., consisting of D. Fay, and Rufus Kendrick, and the defendant, Tarbell, and in the fourth division, between D. Fay & Co., and D. Tarbell & Co., the interest of which, was at the time in Kendrick and Tarbell. These matters are expressly submitted, so far as Kendrick and Tarbell had adverse interests, and that they had here, is apparent, -inasmuch as Tarbell is not a member of D. Fay & Co. The bond then obliges defendant to pay this award, and the present seems the most natural and obvious reme dy, if not the only one. No doubt it is the one contemplated and provided, by the parties, in their submission. If the bond obliges the defendant to pay such awards to the plaintiff, we see no objection to his here recovering the amount of such awards. And the bond seems to us to oblige the defendant, to pay all the awards, or to pay the “award” against defendant, which the arbitrators should make upon the matters submitted. And these five awards are but the detail of “ the award,” which the submission seems to have contemplated, and we do not perceive how the award is, in any sense invalidated, because the decision upon each claim is stated in detail. It might not have been necessary, but it will not vitiate the award, unless it show error. Nor will it vitiate the award in our opinion, that the final balance is not struck in the award. That is matter of computation, and the judgment in this case, was based upon such computation, as we understand from the bill of exceptions. As then the payment of this award, which is the final balance of all the particular matters passed upon, is the only mode provided in the condition of the bond, for saving the same, the defendant must do it, or be made liable upon the bond; and not having done it, he is liable, and the amount of damages is the same sum. Besure, if the arbitrators made a separate award upon each matter submitted, without stating the final balance, giving to each party the balance coming in his favor, we do not think this such a departure from the submission, as to be fatal to the award. And if the defendant had withheld his portion of the award, it might have been proper enough for the plaintiff, to have judgment on that portion in his favor. But as this judgment is for the final balance, there can be no possible objection to it upon this ground. Nor will the court reverse the judgment, because the judgment was first rendered for the whole balance due plaintiff, and the balances found due defendant subsequently deducted, even if that were erroneous, (which it is not,) because the result is the same, as if the balance had been struck, before judgment was rendered.

II. The objections to the detail of the award do not any of them . appear to us fatal. And we would, in any doubt, feel bound to make all reasonable presumptions in favor of an award, as much as in favor of a judgment. And it is incumbent upon the party objecting to the legality of an award to show clearly the fact of its illegality.

1. The objection, that only matters were submitted where the parties had adverse interests and that these matters do not seem tO'be of that character does not seem to us to be well founded in fact. They seem all to have been cases where the parties to the submission had adverse interests. And if there were anyjjdoubt upon that point, upon the papers in the case, the consideration, that it was so treated by the parties, before the arbitrators and by the arbitrators themselves, would seem to be altogether satisfactory, upon that point.

2. The money left in Spaulding’s hands and the balance of the Downer note unpaid, it is said are not finally settled. But we do not see how it could have been any more finally determined by the arbitrators. The money in Spaulding’s hands they could not get to divide, and when it should be realized, there was no dispute about the ratio of division between these parties. So too in regard to the payment of Downer’s note, the arbitrators expressly stated the ratio of obligation, to pay the amount due, by each of these parties, and that it remains unpaid in part, and is to be paid by the parties, or this is the legal inference. What more could they do ? It certainly does not occur to us. And the fact that the concerns of a partnership are not in a state to be finally settled, does not preclude the partners from, making a partial settlement, even by arbitration.

3. The awards, or the portions of the award, in favor of D. Fay & Co., one of whom is not party to the submission, will not bind that party if he had, at the time of the submission and award, interests distinct from the parties to this submission. They could not therefore probably maintain an action upon such awards, to which in the submission or hearing, they were not all parties. But as the bond is to' pay the awards, and the plaintiff is interested in favor of the party to whom the awards are made, we see no objection to including the amount in the damages, for breach of the bond. But it does not appear but the plaintiff and defendant might have owned the interest of all the other parties, and it is stated by the arbitrators, that defendant did own the interest of Spaulding. And the parties to the submission, if they did not own the interest of the other partners must have known the law and entered into the bond understandingly and must perform it.

4. The fifth award as it is called, is upon matters strictly between Kendrick and Tarbell, as the latter owned Spaulding’s interest and so comes within the terms of the submission.

As then the judgment meets the merits of the case, it does not become necessary to look into the forms of pleading which were objected to by plaintiff, as not legally raising the questions argued by defendant’s counsel, at the bar.

Judgment affirmed.