McGehee v. McGehee

12 Ala. 83 | Ala. | 1847

ORMOND, J.

The award made on the submission, entered into between- Abner and William McGehee, is not impeached, and appears to be unimpeachable, and is, as between them, conclusive upon the matters submitted, and determined by the arbitrators. Is it also binding on Albert McGehee? It appears that Abner, and Albert McGehee, were co-sureties of William McGehee, and that the latter for their indemnity, placed in the hands of Abner, certain claims which he held upon the Montgomery Rail Road Company, who executed a receipt for them to William, and promised to collect the demands, and pay certain specific liabilities, being those for which Albert, and Abner, were his co-sureties. This receipt was deposited with Albert McGehee. It appears to us, that whether William, and Abner, could have submitted this matter to arbitration, without the assent of Albert, (a point not necessary to be decided,) it is very clear, that he is bound by an award, made with his knowledge, at the making of which he was present, and to the making of which he did not dissent. This results necessarily from the fact, that if the arbitrators had awarded that Abner McGe-hee was responsible for the nominal amount of the claims put in his hands, it would have been a fund for the discharge of the debts of William McGehee, for which he, as co-surety with Abner McGehee, was responsible. If therefore he did not intend, that the award should conclude his rights, as to the value of the fund placed in the hands of Abner McGehee, it was his duty to ¡make known his dissent. It would be most inequitable, that he should be permitted to await the result, and take the benefit of it, -or repudiate it as might best comport with his interest. The testimony is full to the point, that he was present aiding, and assisting, William McGehee in collecting testimony to lay before the arbitrators ,• was present at all the submissions, and when the award was made.

That he could have insisted on the award if it had been beneficial, we consider perfectly clear, as an award in favor of the principal debtor, and requiring one of the sureties to pay the debt from funds derived from the principal debtor, must by extinguishing the debt, enure to the benefit of the other surety. It is well settled, that although strangers to an award are not concluded by it, and therefore can derive no benefit from it, privies in estate may. It has been field,, that an award between a vendor, and a claimant of the property, was available to the vendee, in a suit by the same claimant against him, for the same property. [Evans v. McKinny, Litt. Sel. Cases, 262. See the general doctrine and the authorities in Watson on Awards, 175.]

But it is not necessary to rest this case, on the mere omission of the complainant to dissent from the award, which he knew was about to be made, because we think the evidence-shows very satisfactorily, that he consented it should be made. Mr. Bugbee, one of the arbitrators, who was examined as a witness, says, “ Albert McG-ehee was present at the several submissions, as the friend of William McGehee as I understood, and did consent to the said submissions.” In answer to the next question, he says, “Albert G. McGehee submitted no matter of his own to us, but during the investigation, he wished us to consider his interest, which was declined. I stated to him, as arbitrator, that we as arbitrators, had nothing to do with the matter between him, and Abner McGehee. That our award could not in any wise affect him , that his case was not before us, and we could not take it into consideration.”

In answer to the second cross interrogatory, he says, “ During the investigation, and acting upon the matter submitted, Albert McGehee was frequently present. He did not object to the submission, or to the arbitrators acting upon the matters submitted. He wished his rights to be considered, but having been told that could not be done, he did not persist.”

It is quite clear from this, that the complainant was willing the matter submitted should be arbitrated, as it appears he consented to the submission. He wished the arbitrators also-to consider the matters in difference between him, and Abner McGehee ; this they refused, and upon being told that the award would not bind him in that particular, submitted. It is impossible, that this proposition of the complainant, to consider of matters between him, and Abner McGehee, could relate to the matter submitted, which was whether Abner was to account for the claims put in his hands, at their nominal, or actual value, because in this matter his interest was precisely the same as that of William McGehee. The other matters he wished them to consider of, were doubtless those set forth in this bill; whether the funds in the hands of Abner, was to be appropriated in payment of the debts of William McGehee, for which Albert alone was bound as surety, as well as those, for which he and Abner were joint sureties. This the arbitrators very properly refused, as not within the submission. Be these matters, which he wished them to consider, what they may, it is certain they did not connect themselves with the matter submitted, as the witness explicitly states, that he did not object to the arbitrators acting upon the matter submitted, but consented to the submission. That his consent to the settlement of this question, by the arbitrators, would bind him, there can be no doubt. It would in effect be a parol submission of the matters in controversy. Such a consent would bind even a stranger to the award. [Kingston v. Phelps, Peake, 227.]

The award ascertained, that Abner McGehee was liable only for the actual value of the Rail Road demands, which was settled at fifty cents in the dollar. It also determined, that Abner McGehee had paid out the entire amount, except a small sum, in discharge of the debts, for the payment of which it was placed in his hands. It also appears from the record, that Abner McGehee has paid with his own funds, a much larger amount of the debts of William McGehee, for which he and the complainant were jointly bound as co-sureties, than the complainant, and the result is, that the decree of the chancellor dismissing the bill, must be affirmed.