39 Vt. 420 | Vt. | 1867
The opinion of the court was delivered by
The objections urged to the award by the defendant amount to a claim ; first, that the award is not certain ; secondly, that it is not mutual; thirdly, that it is not final, and, fourthly, that it is not within the submission. Either of these objections, if well founded, is sufficient to render the award invalid. The action is founded upon the first' article of the award, and is brought only to recover the money therein awarded as due the plaintiff from the defendant. It is doubtless competent for a party to declare upon a single article of an award, and, if that article is in itself so complete and independent of the rest of the award that its separate enforcement would work no injustice to the other party, he may recover, even though the other portions of the award are void. Caldwell on Arbitration, pages 120-1; Doke v. James, 4 Comstock, 567 ; Lincoln v. Whettenton Mills, 12 Met. 31; Kyd on Awards, p. 243, et seq. In this case, however, we are unable to see how the plaintiff can take any benefit from this rule, for the several articles relate to the same subject matter, the partnership between the parties, and the different parts are so commingled and mutually dependent that it would be impossible to separate them and hold one part operative and others void. The award must therefore be examined .as a whole, and entirely stand or entirely fall.
1. As to certainty. The,fact that the arbitrators have stated results without the processes which led to them does not make the award uncertain. The amounts claimed, the respective accounts of the parties, and the findings upon them, need not be stated. To make the award invalid it must be the decision which is left uncer
2. As to mutuality. It is claimed that the award is not mutual because it does not provide in terms that the plaintiff shall relieve the defendant from the Townsend debt, and provides no remedy in ease the plaintiff fails to pay it, and that it cannot affect Townsend who is a stranger to the submission, and may collect his debt of either partner. The last point of this objection is urged and applies with equal force to the entire award so far as it professes to dispose of the partnership debts and credits, for no award between these parties
a. So far as this last point applies to the Townsend debt it is enough to say that the award only purports to relieve Cowan from the debt, “as between the parties,” and it is well settled that an award, that one party shall pay a stranger„a debt for which both parties are bound, is valid as between the parties to the award. Caldwell on Arbitration, p. 100 ; Com. Dig. Title Arbitrament, E. 7, 1 Salk., 74; 1 Bouvier’s Bac. Ab., p. 323, and cases cited, Title, Award (E.) 1 ; Beckett v. Taylor, 1 Mod. 9.
b. Again, an award need not always provide a remedy or method of enforcement. Where partnership assets and debts, or their future avails, are apportioned, as in this case, it is often impossible to provide how the award shall bo executed. Lord Hardwicke, in passing upon a similar case held the award good “for the arbitrators had no control over the debtors themselves, who might, if they pleased, pay the whole to one of the parties,” and remarked as follows : “ To. lay it down as a general rule that arbitrators must particularly point out the method in which their.award shall be carried into execution, would be too nice, and such a rule would overturn a great number of awards. If, in such a case as the present, one of the parties should release a debt due the partnership, that would be a breach of the award and the other party could have no remedy but by action or bill to have the award carried into execution. No award can be effectual to finish disputes between contending parties.” Kyd on Awards, p. 133, citing Lingwood v. Eade, 2 Ark. 501, (515.)
c. The objection that the award does not in express terms require Lamphire to relieve' Cowan from the partnership debt to Townsend loses its force, if express terms are not necessary in order to make the award effectual to carry out its purpose, and the true rule is that stated by the learned Judge who delivered the opinion in Hicks v. Gleason, 20 Vt. 139 : “ If by manifest implication that appear, which, if positively expressed, would render the award good, that is sufficient to support it.”
d. Independent of this, the defendant cannot, it would seem, under the circumstances of this case avail himself of the defence
3. As to finality. Much that has been said under the heads of the certainty and mutuality of the award are applicable to the objections to the award in respect to finality. The award is final
4. As to whether the award followed the submission. The only evidence of the extent of the submission is the statement in the award that it embraced “all matters of difference,” and of the extent of these matters, the statement that the arbitrators “carefully considered all accounts and statements presented.” The intendments are in favor of the validity of an award as well as of a judgment. We must presume, in absence of evidence to the contrary, from the award or otherwise, that all matters passed upon were matters of difference, and that all matters of difference were passed upon.
5. It is urged that the court erred in admitting proof that the plaintiff had paid the Townsend debt. If the payment of that debt was a condition precedent to the plaintiff’s right of recovery the proof was necessary and proper for the plaintiff to make. If it was not a condition precedent it was unnecessary but entirely harmless to the defendant.
The judgment of the county court is affirmed.