92 Tenn. 397 | Tenn. | 1893
The defendants in this case, the Wilkins heirs, sold to complainant, L. D. Palmer, a piece of ground in Nashville by deed containing the usual covenants of warranty. The land was described in the deed by metes and bounds, the call of the east line being the middle
Judge McAlister decided that Palmer, by his deed, obtained the fee to the land in controversy subject to the easement, and, therefore, that there had been no breach of any of the covenants except the one against incumbrances. Judge Whitworth and Lewis T. Baxter were selected as arbitrators, they to select a third arbitrator in case of disagreement, who was to act with them in reaching a conclusion. They failed to agree, and selected H. E. Jones as the third man. On October 7, 1889, an award was rendered' to the effect that there was no damage, but as it had been decided by Judge Mc-Alister that there was a breach of the warranty,, defendants should pay the cost of the arbitration, which they fixed at $75. ' Defendants paid the $75., Complainant promised generally to pay his notes, and subsequently made two separate promises that if certain liens were released he would pay the first and second notes at once, and the third as soon as he could arrange to do so. In both instances the liens were released. He then filed this bill,.
1. That said ai’bitrators ignored Judge McAlister’s decision, in that they decided that Palmer sustained no damages, whereas Judge McAlister decided that he was entitled to some substantial damages.
2. That they ignored his decision, in that they considered incidental benefits to the remaining property of complainant, resulting from the street in question.
3. That the third arbitrator, Jones, failed to confer with the other two before rendering a decision.
4. That Jones did not view the premises, but examined several real estate agents in the absence of the other two arbitrators, and in the absence and without the knowledge or consent of the complainant, and based his opinion and decision on the information thus derived.
Defendants, in their answer, relied on the award; denied that Judge McAlister’s decision had been violated; denied that the rule of damages laid down by him had been violated; that it was not true, in fact, that the award was made without a conference between Jones and the other arbitrators; that they did meet and -confer, and made the award, all signing same. Defendants further relied on Palmer’s acquiescence in award; that Palmer
The Chancellor decreed that the award was void, and same be set aside and for naught held, and referred the case to the Master to take proof and report the value of the land with and without the easement, and the difference, if any, he should report as the damages.
The Clerk .and Master reported complainant’s damage to be $3,500. Upon exceptions by defendant, the Chancellor reduced the amount to $2,500, and allowed damages for $2,500 to be credited upon defendant’s decree on the note. He decreed in defendant’s favor on cross-bill for the note and interest — $11,237, less the damages —leaving balance $7,932, and defendants appealed, and assigned errors.
There is one further fact that should be stated. A deed was prepared and tendered Palmer to the land, which was refused by him, because reference was made in it to a subdivision of the property, which *had been registered in 1884, which subdivision had an avenue or street forty feet wide on its northern boundary, Palmer saying that he had contracted to buy upon the assurance that an alley, and not a street, bounded the property on the north, and that he had conceived a subdivision on that assurance, and would not conclude his purchase unless it was true.
The first question presented on the record is, Shall or not the award of the arbitrators be set aside ?
The article or agreement of arbitration, between the parties stated, among other things, that “ whereas, L. D. Palmer insists that the said 'strip of ground was included in said conveyance and warranty, and that the existence of said easement constitutes a breach of his warranty, and that he is damaged thereby.” And, as we have seen, “ all matters of law in controversy between the parties shall be submitted to the arbitrament and award of the Hon. W. K. McAlister, óf Nashville, Tenn., and that his decision thereon shall be final and conclusive upon the parties hereto.” It was further agreed “ that should Judge McAlister decide that said warranties, or warranty, had been breached, and that said vendors are liable therefor, then the question of the amount of damages sustained by said Palmer shall (be submitted to the arbitrament and award of three disinterested citizens, to be chosen by said Palmer and by John M. Gaut (representing said devisees), in such manner as they shall see fit. Said arbitrators shall view the premises, and, in accordance with the principles of law settled by Judge McAlister, shall determine whether
Judge McAlister decided that the warranty against incumbrances had been breached. lie laid down the “rule of damages to be the difference between the value of 'the lot without the easement of this street, and its value with the easement as an incumbrance thereon, considering of course its continuance and permanency. In determining the market value of the land at the date of sale, any special use which the purchaser may intend to make of it is not to measure his damages, either to increase or diminish his damages, but all the-uses and capabilities of the property may be considered. Upon this basis the referees will assess the damages.”
By agreement in writing, Judge James Whit-worth and Lewis T. Baxter were selected by the parties to assess the damages sustained by Palmer for the breach of 'the covenant against incum-brances so decided by Judge McAlister, and under the rules for the measure of damages laid down by him. In case they should fail to agree, Whit-worth and Baxter were authorized to select a third arbitrator to act with them in reaching a conclusion. It was expressly stipulated in this agreement selecting Whitworth -and Baxter, that they should view the premises, and settle the question of damages as Judge McAlister had declared. Whitworth and Baxter failed to agree, and, under
The arbitrators, Whitworth, Baxter, and Jones, made the following award in writing:
“ The Court having decided ¿hat there was a breach of the covenant against incumbrances, and the referee concurring with one of the arbitrators that there is no damage to the property by reason of the existence of a street on the northern side of the property, we are all of the opinion, by reason of the decision of Judge McAlister, that*405 there was a breach of the covenant, and therefore, all the costs of this suit and of the arbitrators shall be paid by the Wilkins heirs. The arbitrators state that they consider a fee of $25 each a reasonable fee, and that the same amount, viz., $25, should be paid to the referee.
“ Signed, Jambs Whitworth,
Lewis T. BaxteR,
H. E. Jones, Referee
Jones, as we have seen, did not view the property with the other arbitrators or alone. The agreement of arbitration, as we- have seen, expressly stipulated that the arbitrators should view the premises. This included the third arbitrator as well as the two first selected, for the obvious reason that he should act as much in conformity with the agreement of arbitration as the two first selected. All the arbitrators must act together during the proceedings. Morse on Arbitration, page 152.
The same rule obtains where a third ai’biti’ator is called in. Morse on Arbitration,- 158.
An award, to be valid, must strictly conform to the terms of the submission. 3 Baxter, 309; 6 Heis., 162.
Row, Jones says the only question submitted to him was whether or not the value of the lot was diminished or not by the presence of a street known as Lee Avenue. He deciding it was not, and one of the other arbitrators agreeing with him, the award 'was made. The article of submission provided that should Judge McAlister de-
The award was properly set aside by the Chancellor. The defendants insist that complainant had acquiesced in the award, and thereby ratified same,
The proof in the cause shows the damages sustained by complainant, and the report of the Clerk and Master, so far as sustained by the Chancellor, has the weight of the finding of a jury. 1 Pickle, 218-215.
The proof fully sustains the report of the Clerk and Master as confirmed by the Chancellor.
The decree of the Chancellor is correct, and is affirmed with costs.