Maryland & Delaware Rail Road v. Porter

19 Md. 458 | Md. | 1863

Cochran, J.,

delivered the opinion of this Court:

This is an appeal from a judgment obtained by tbe appellee, in a suit instituted on an award, by which the appellant was directed to pay the sum of $167.25 to the appellee, as a compensation for certain damages to lands in his possession.

It appears that the appellant, after having surveyed and located the line of its proposed road through lands rented to and in the occupancy of the appellee, entered into an alleged written agreement with him, to submit the matter of his damages to arbitration. By this agreement, the parties fixed the mode of appointing and number of tlie referees, any two of whom were declared competent to make an award that should be final. Under this agreement arbitrators were appointed, two of whom made and returned the award upon which this suit was brought. At the trial, the appellant reserved several bills of exceptions, the 3rd of which, taken to the granting of the appellee’s 1st prayer, presents the leading question in the case. On that exception we are to determine whether, upon the facts enumerated in the prayer, and the true construction of the agreement and award, the appellee was entitled to the instruction granted. The prayer was objected to on the ground that it did not include and present, as a distinct fact to be found by the jury, the authority of Tilghman to make the appellant a party to the agreement, by his execution of it as the appellant’s agent. The exclusion from a prayer of a fact necessary and material to support the instruction sought, constitutes an objection not less fatal than would be the assumption of the same fact, for' in either case the tendency is to force a verdict on facts, the finding of which is taken from the jury. That objection does not present itself, however, when the exclusion or omission is only of some element or constituent part of a fact, the finding of which, as a whole, is properly left to the jury. When a fact, constituted of several distinct elements or parts, is clearly submitted, and the finding of it by the jury necessarily implies a consideration of the several parts, the failure to enumerate them in the prayer, cannot be considered a substantial" ground of objection. In this prayer, the execution of the agreement by the appellant was clearly and definitely .presented as a fact to be found by the jury, and in finding it, they were bound to consider and find Tilghman’s relations to and authority from the appellant, to bind it by his signature. As a body .corporate, the appellant could enter into agreements only •through the medium of authorized officers and agents, and ;the question of fact, as to its execution ,of the agreement in t-bis case, involved a consideration and finding of the authority by which it was made. Proof of an express authority to Tilghman, was not necessary for considering that fact as a necessary element of a valid execution of the agreement, the jury were at liberty to find it from the circumstances and acts of the parties; and as this case was presented, we cannot say that no evidence was offered from which the jury could conclude that the proper authority was granted. Northern Cen. R. R. Co. vs. Bastian, 15 Md. Rep., 494.

As the jury could not find that the agreement was executed by the appellant, without finding that Tilghman, as its agent, had authority to sign it, the objection would seem to have no foundation. We do not, however, determine the objection to be immaterial on this ground alone, as a consideration of it, in another aspect of the case, leads to the same conclusion. The agreement in question was not only offered in evidence, as a subsisting obligation between the parlies, without objection, blit the appellant proved by the witness, Holliday, that the parties joined in the request that he, the witness, would write the award determined on by tbe arbitrators, by virtue of the agreement. The appellant also offered a series of prayers, and in the 1st and 2nd of them assumes, as a matter of fact not left to the jury, the agreement to he an existing contract between tbe parties. Considering the agreement in connection with the evidence thus offered, and the assumption of it as a fact in the appellant’s prayers, the objection that Tilghman’s authority to sign it was not submitted as a distinct fact to be found by the jury, came too late, for as the case then stood, the jury were at liberty to find, without considering the fact of that authority, that the appellant was, by adoption, if not otherwise, actually a party to the agreement.

Having disposed of the objection, that the instruction Contained in the prayer was granted upon a hypothesis insufficient in its facts, we have next to consider whether the award offered in evidence was made within the terms of the agreement of submission. The chief objection to the award, urged in the argument of the case, was that the sum ascertained by it was awarded as a compensation for damages sustained, it having been contended, as a part of the proposition, that by the terms of the submission, the arbitrators were authorized to ascertain and award only for such injury and loss as should result to the appellee by making the appellant’s road as then located, and that evidence offered to show that the road was not made as then located, and that the appellee suffered no injury, ought to have been considered. This objection finds its entire support in. what we conceive to be a very strict, if not forced, construction of the agreement of submission. The appellant undoubtedly entered into that agreement with the fully determined purpose of making the road as then located, and in view of that purpose, the damages to be ascertained by the arbitrators could not have been contemplated by either party as contingent on, or as awaiting the actual execution of that purpose by the appellant. The agreement provided, that the amount of damage to be paid to the appellee for the injury or loss he might sustain by making the road as located, should be ascertained and settled by a reference to three persons, any two of whom were declared competent to make a final award, and that the damage or compensation that might be awarded, should be paid or satisfied on the return of the award. It should be observed, that agreements like this, made to compose and settle controversies by arbitration, are favorably regarded in Courts of Law, and that awards made by virtue of such agreements, are liberally, and if possible, so construed as to make them effective. Cromwell vs. Owings, 6 H. & J., 10. Ebert’s Exrs. vs. Ebert’s Admrs., 5 Md. Rep. 353. Roloson vs. Carson, 8 Md. Rep., 208. Construing this agreement in the light of these authorities, and so that all Its parts may have effect, it is clear that the damages to be1 ascertained wore to be considered as already done. Upon the return of tho award, the sum ascertained and awarded ivas to be, and thereby became, a present subsisting debt,, duo from the appellant to the appellee, independent of, and unaffected by, any change in the location of the road subsequently made. In our opinion, there is no provision in the agreement inconsistent with this construction, not’ is there any from which there can be a contrary implication. Upon this construction of the agreement of submission, the award is not open to the objection taken, as it determined only what the agreement contemplated and authorized, and that, in the apt and proper terms, necessary to give the award itself the present actionable character designed hy tho parties to tho agreement.

The instruction in the 3rd exception was also objected to, on the ground that it authorized the finding of a verdict for the appellee, without finding that notice was given hy the arbitrators to the parties, of the time when they proceeded to consider the matter submitted to them. The case of Bullitt vs. Musgrave, 3 Gill, 31, was relied on in support of this objection, hut we think that authority does not apply hero. Although it may generally he necessary to submit the question of notice as a fact for the jury, to entitle one claiming upon an award to recover, it is not so in a case where that necessity is avoided hy an express agreement, or where the parties, themselves, make the appointment of the time and place for bearing before the arbitrators. In connection with, or upon the agreement of submission in this case, is a memorandum of the persons appointed as the arbitrators, and also of an agreement in these words; “It is agreed by the loithin named parties, that the referees shall meet at the Md. & Del. R. R. Co’s office, on Friday next, the 2nd of January 1857, at 9 o’clock, A. M.” Holliday’s evidence, in connection witli the date of the award, shows that the parties were present with the arbitrators on that day, they having joined in the request that he should write the award then agreed on, which he did that night. The effect of the agreement for the time and place of meeting, operated as a waiver of the notice called for by the agreement of submission, and as it is shown that the parties were present with the arbitrators on the day appointed, and joined in procuring the service of the witness, Holliday, in writing the award determined on at that time, the question of notice cannot be a material one. We think, therefore, that the Court did not err in granting the instruction excepted to, and that the jury were authorized to find that the award was made in pursuance of the agreement of submission, without regard to the notice provided for by it.

(Decided March 26th, 1863.)

Being of opinion that a determination of the questions raised by the other exceptions, will not change the result already ascertained by the consideration of the 3rd, we shall forbear an expression of our views upon them, and affirm the judgment.

Judgment affirmed.