Loring v. Whittemore

79 Mass. 228 | Mass. | 1859

Dewey, J.

1. The question of the character of the contract between these parties for the submission of certain matters in dispute to arbitrators, who made an award thereon, is doubtless of importance in reference to the statute of limitations. It is contended on the part of the defendant, that although the original contract was under the seals of the parties, and would have been subject only to the statute limitation of twenty years, yet, in consequence of the supplemental agreement made by the parties in writing, but not under seal, under date of December 2d 1841, substituting James C. Doane as one of the referees instead of Edward Thaxter, the specialty was thereby merged and incorporated in the subsequent agreement without seal, and thus assumed the character of a simple contract. Had the case been that of this subsequent contract alone, modifying and materially changing the sealed contract of submission, that consequence might have followed. But such was not the fact. The parties, on the 27th of December 1841, added to the writing of December 2d a further modification of their previous submission, and this supplementary writing virtually recognizes all the previous stipulations as to the submission, and is under the hands and seals of the parties. The whole contract thereby assumed the nature of a contract under seal, and is to be dealt with as such.

2. It is then further urged that the plaintiff cannot maintain the present action, because he has not shown a performance on his part of the duties required by the award. We are not satisfied that it was necessary, in this action, for the plaintiff to show a performance of any acts by himself, in reference to the notes and accounts which were awarded to Whittemore. Each party had the separate bond of the other for the due performance of the award by each, and might enforce such performance. Further; from the evidence, the judge might well have found that these notes and accounts were placed in the hands of Whittemore, and this was all the transfer of them required to authorize Whittemore to apply the same to his own use.

As to the land, the award declares a right of property, but does not require any new or further conveyance to be made by Loring; and there is nothing in the case to show that such was the purpose of the referees.

3. In the position of the case, the presiding judge properly admitted the evidence of the bond signed by the plaintiff for the purposes for which it was used.

4. It should be remarked that, in this case, the parties, having waived a trial by jury, thereby submitted the questions of fact to the determination of the presiding judge.

Upon the whole case, the court are of opinion that judgment should be entered for the plaintiff.