50 N.J. Eq. 155 | New York Court of Chancery | 1892
The complainant applies, on notice under’ paragraph 224 of the rules, to strike out several parts of the defendant’s answer. By force of the rule just mentioned, such an application, when the pleading put on trial is an answer, takes the place of exceptions, and the question whether the application shall be granted or not must, I suppose, be decided by the application of the same-
While there are many different definitions of impertinence, they all seem to agree in this, that any matter alleged in a pleading, to be entitled to stand' against objection, must in some way appear to be of use in deciding the questions in dispute in the particular cause, otherwise it is useless, and serves but to cumber the record, and hence should be expelled as worthless. In Woods v. Morrel, 1 Johns. Ch. 103, 106, Chancellor Kent said: “ Facts not material to the decision are impertinent; * * * perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties.” While Chancellor Zabriskie, in C. & A. R. R. Co. v. Stewart, 4, C. E. Gr. 343, 345, said: “All matters not material to the suit, or if material which are not in issue, or which, if both material and in issue, are set forth with great and unnecessary prolixity, constitute impertinence.” And Chancellor Walworth, in Van Rennselaer v. Brice, 4 Paige 174, 177, I defining what an. answer might properly allege, said that any matter, which “can have any influence whatever in the decision of the suit, either as to the subject matter of the controversy, the particular relief to be given, or as to costs, is not impertinent.” Vice-Chancellor McCoun had previously, in Desplaces v. Goris, 1 Edw. Ch. 350, 352, stated the rule in substantially the same way. And Chancellor Walworth, in the subsequent case of Hawley v. Wolnerton, 5 Paige 522, 523, in stating what matters might properly be alleged in a bill, said: “ The complainant may therefore state .any matter of evidence in the bill, or any collateral, fact, the
To decide whether those parts of the defendant’s answer which are the subject of the complainant’s objections are pertinent or not,.
The arbitration agreement was signed by the parties on the 20th day of April, 1891, and three days afterwards, April 23d, the arbitrators made their award. They decided that the complainant should sell all his stock, “ and any and all his rights in connection with said company,” to the defendant, and that the defendant should, as part of the price of the stock, pay to the complainant $23,000. Eleven thousand dollars of this sum they directed to be paid, in the language of the award,
‘‘ in the following manner: The sum of $8,000 in cash within three days after the making of this award, and giving to the said Edward Leslie [the complainant] a receipt in full to this date of all moneys due by the said Edward*159 Leslie to the said John S. Leslie, or to said company, which amounts we, the said arbitrators, declare to be $3,000.”
The other $12,000 of the $23,000 was directed to be paid in two payments of $6,000 each, one on the 1st day of May, 1892, and the other on the 1st day of May, 1893. The arbitrators also • awarded, to quote the words of the award,
“ to the said Edward Leslie a bonus of $1,000, to be paid on each rotary snow•plow hereafter built and sold by the said Leslie Brothers’ Manufacturing Company or its assigns until the sum of $1,000 is paid on fifty plows, after which number said payment of $1,000 shall cease to be made.”
And then, by a subsequent clause of the award, it is directed that the payments, which are described as a bonus, shall become due on the 1st day of May of each year, commencing with May 1st, 1892, and shall be paid on all plows “ built and disposed of” during the preceding year. The complainant attributes two faults to the award. He says, first, that it is uncertain and inconclusive in this—that as to more than two-thirds of the sum which the arbitrators apparently intended to allow him for his stock, no present certain right to it is givenj on the contrary, whether or not a right to it will ever arise is made to depend entirely on what the Leslie Brothers’ Manufacturing Company or its assigns may see fit to do in the future; and he says, secondly, that the arbitrators exceeded their authority in this—that they attempted not only to decide in what sum he was indebted to the defendant or to the Leslie Brothers’ Manufacturing Company, when in truth nothing of that kind had been submitted to them, but also to prescribe the method in which he should pay such debt. It has already been decided, in disposing of a demurrer filed to the bill, that on the assumption that the facts stated in the bill embrace all the material facts of the case, and are all true, the award is infected with the two faults imputed to it, and that they are fatal to its validity. Leslie v. Leslie, 5 Dick. Ch. Rep. 103.
With the aid of this preliminary statement we may now enter intelligently upon the consideration of the questions raised by the complainant’s application. In answer to that part of the
Although the next two paragraphs of the answer, to which objection is made, are so inartistically d'rawn^s to make ife-somewhat uncertain what precise fact the pleader intended to allege as the ground of defence, yet I think, wheu read together, they may be fairly understood to have been framed with a design to aver that the complainant has so far accepted the award, by consenting to a partial performance of it, that he should not now, though it is bad, be allowed to challenge its validity. In the first of these two paragraphs it is alleged that the complainant- did not give notice that he would not abide by the award until a long time after the arbitrators had completed their work and made and delivered their award, nor until after the arbitrators had left Paterson and gone to their homes in Canada; and then in a subsequent
There is but a single other objection to be considered. The complainant, in alleging that the arbitrators exceeded their authority, charges, it will be remembered, that the excess consisted in deciding not only in what sum he was indebted to the defendant or the Leslie Brothers! Manufacturing Company, but in also deciding how he should pay such debt. The defendant, in answer to this part of the bill, says that the complainant appeared before the arbitrators and admitted that he was indebted to him (the defendant) in the sum of $3,000, and, in addition, consented and agreed that the debt so admitted should be taken into consideration by the arbitrators and be dealt with and disposed of by their award; and that it was in consequence of this admission and .agreement that the arbitrators took jurisdiction of the debt and directed how it should be paid. Now, if it be true that the complainant made the admission and agreement here charged against him, and in the manner and under the circumstances alleged, it seems that it is wholly unnecessary—indeed, I think it would be
As the complainant has succeeded in part of his application and failed in other parts, neither party will be allowed to recover-costs against the other.