25 Gratt. 78 | Va. | 1874
Lead Opinion
These two cases are founded upon an award, and upon the same award. The controversy in them lies in a narrow compass. I think both cases depend upon a single question, and that is: ££ "Whether the award is within the submission or not as to Sutherlin ?” If it be, then I think it is valid both as to Sutherlin and Buford. But •if it be not within the submission as to Sutherlin, then it is clearly void as to him, and a question will in that case arise, “ Whether it is not therefore void also as to Buford?” Other questions were noticed in the argument, but they seem to me to be free from any doubt or difficulty, and will perhaps be sufficiently answered by what I may say in answer to the main question above stated; though I may notice some of them more particularly in the sequel of this opinion. I will therefore proceed at once to consider the main question, “ Whether the award be within the submission or not as to. Sutherlin ?”
There is no principle of law better settled, than that ■an award to be valid must be within the submission. It would be a waste of time to cite cases in support of a principle so well settled. Indeed, it is a self-evident principle. An arbitrator derives all his authority to make an award from the submission. He has no more authority, outside of the submission, to make
In 1859, Pollock, a resident of Scotland, sold to-Fitzgerald, a resident of Virginia, a tract of land lying in Pittsylvania county, and deposited the deed therefor to the purchaser in the Bank of Virginia in Danville, it seems, as an escrow, to be delivered on the payment of the purchase money, which, or the greater part of which, was payable in deferred instal.ments. Before the money was paid, or the deed was delivered, the war came on, which, of course, cut off all communication between Pollock and Fitzgerald. During the war, a sale of the land was made by Fitzgerald to Sutherlin, through the instrumentality, it seems, of Buford, who claimed tó be the agent of Pollock, with full authority from him to do what he did. By these means the deed was obtained from the bank and delivered to Fitzgerald, who then conveyed the land to his vendee, Sutherlin. It seems that the latter paid a large portion of the purchase money due by him in Confederate currency to Buford, who received the same, and deposited it from time to time as received in bank to the credit of Pollock. After the war was over, the representative of Pollock (who had died in the mean time), upon inquiry into the state of the case, ascertained what had been done as aforesaid,
Such being the controversy between these parties, it was necessary to have it determined, either by the action of the courts established by law, or by the award' of an arbitrator mutually chosen by the parties for the purpose. The country was then subject to military power, and the courts were composed of judges who had not the confidence of the public. The parties, therefore, naturally preferred to have so important a controversy determined by the award of an arbitrator' chosen by themselves; They suc
. Having agreed to refer the controversy to an arbitrator, and having chosen an arbitrator so fit and competent in every respect, and who seems to have had the entire confidence of all the parties, it was natural and reasonable that they should invest him with the amplest powers to settle the controversy in such manner as he might think to be just and right. And now let us look at the submission, and see whether and to what extent such was actually the case.
The submission is by deed, under the hands and seals of the parties, who were Berryman Green, administrator of Mori’is Pollock dec’d, Morris Pollock Jr. (son and sole heir of Morris Pollock deceased), by H. Robertson, his attorney in fact, A. S. Buford, and "W. T. Sutherlin. It bears date the 24th of March, 1869; and after reciting the facts in regard to the nature of the controversy, and the conflicting claims of the parties, it further recites that “ the said Edmond Eitzgerald and the said Bank of Virginia are both insolvent, and the matters of controversy aforesaid involve novel and difficult questions of law as well ■as óf fact.” And then, after stating the qualification of Berryman Green as administrator of Morris Pollock deceased, and the authority of Harrison Robertson as attorney in fact of Morris Pollock Jr., sole devisee and legatee of - Morris Pollock deceased, to submit to arbitration any matter affecting his interest in the premises, it concludes the recitals with one in the following words: “And whereas all the parties interested (except • the insolvent Edmond Eitz
After making these recitals, the submission thus proceeds: “ Now, therefore, the said ” (parties, naming them,) “do hereby submit to the arbitrament, award and decision of the said G. A. Wingfield, all the matters of controversy aforesaid, both of law and fact; and do hereby covenant severally, each with the others, and any one of the others, in the penalty of $10,000, to abide by, keep, perform and fulfill, in all things well and truly, the award, arbitrament, decision and orders of the said G. A. Wingfield in the premises, so as such award,” &c., “shall be given in wiiting under the hand of the said G. A. Wingfield within, at the farthest, twelve months next succeeding the date of these presents.
“And we do further agree that in ascertaining the facts of the matters of controversy hereby submitted, the said G. A. Wingfield shall and may consider and weigh all the testimony that he can find, or that may be produced to him, relevant to the subject matter, whether the same would be admissible according to the sti’ict rules of evidence in court or not, giving to such testimony such weight as he may think due and proper; and having ascertained the facts of the case, to the best of his means, skill and ability, he shall de
After empowering the arbitrator to fix his own compensation, and prescribe how the same and his traveling or other expenses should be paid by the parties, or any of them, the submission contains the following concluding clause:
“And we do further agree that he shall be at liberty, if he thinks proper, to make his award as to any one or more of the parties, or to any portion of the matters in controversy as aforesaid at any time within the period of twelve months aforesaid, without waiting for a full and final award of all the matters aforesaid; and such award in part shall be binding upon the parties, and in such case he shall go on to complete the full and final award as to the remaining matters as soon as practicable.”
We thus see from the submission, that, as might well have been expected from the nature of the controversy, the character and qualifications of the arbitrator, and all the surrounding circumstances, he was invested with the amplest powers for the settlement of' the matters in dispute between the parties, and putting an end to all controversy on the subject. To be sure, he was not expressly empowered to settle any matter whatever of controversy which might possibly exist between the parties, but to settle a particular matter of controversy, which was in fact, no doubt, the only matter of controversy between them. Butin regard to the settlement of that matter, and everything involved in it, he was invested with ample and, indeed, with extraordinary powers. It would have been difficult to-have used expressions stronger than those which were-
And yet the learned counsel of Sutherlin and Buford contend that these provisions, or some of them, were intended to restrict and not to enlarge the powers of the arbitrator; and they refer to those relative words, such as “ matters of controversy aforesaid,” which they say are carefully used in connection with all the powers conferred on the arbitrator, for the purpose of indicating that they are to be exercised only in regard to the particular claims of the different parties recited in the preamble of the submission.
Certainly the submission relates only to the controversy which actually existed between these parties, and which is referred to in general terms in the preamble; but it was plainly intended that the most ample powers should be conferred on the arbitrator in regard to the decision of that controversy, and every question involved in it. Uo intention is manifested in the instrument that those general terms should be construed in any narrow and restricted sense, in ascertaining what was the subject of the reference. On the contrary, the preamble expressly declares that- “ the matters of controversy aforesaid involve novel and difficult questions of law as well as of fact,” and that the parties “are willing to settle and adjust all the matters of controversy aforesaid with the least possible delay and expense consistent with justice to all.”
To construe the submission in the restricted sense contended for as aforesaid, would be contrary to the settled rules of law in regard to the subject of arbitration and award, according to which rules that amicable mode of settling controversies has always been highly favored, and has recently become much more
Having examined and considered the submission, I will now proceed to examine and consider the award.
It is a very brief and plain instrument, consisting, besides a short preamble, of but three clauses; not setting out any of the testimony in the case, nor any
The preamble recites that the arbitrator, in pursuance of the submission, proceeded to arbitrate and determine the several matters of difference specified therein, the several parties being present in person, except Morris Pollock, Jr., who appeared by Harrison Robertson, his attorney in fact; and after haying heard the parties, examined their witnesses and documentary evidence, and fully considered the same, as well as the arguments of the counsel of the several parties, had decided and determined, “ and do hereby decide, determine and award, as follows, viz ”: and then follow the three clauses of the award:
“1st. That the said William T. Sutherlin do pay to the said Berryman Green, administrator with the will annexed of Morris Pollock, deceased, the sum of $7,574.67, withdnterest thereon after the rate of six per cent, per annum from the first day of May 1865 until payment; and that upon the payment of the same, the said deed from the said Morris Pollock, the elder, to the said Edmond Eitzgerald, bearing date the first day of December 1859, shall be taken and held to be the absolute deed of the said Morris Pollock, and conclusive and effectual for the conveyance of all his right and interest in or to the tract .of land therein mentioned, and the said Morris Pollock, Jr., shall be thereby forever concluded and barred from having or claiming the said land as the heir or devisee of the said Morris Pollock, the elder.
“3d.,” &c. This clause relates only to the compensation of the arbitrator.
Now, it is not pretended that this award was procured by corruption or other undue means; or that there was any, the least, partiality or misbehavior in the arbitrator. But the objection is that the award is not within the terms of the submission, and that the arbitrator exceeded his authority. If he did, the award, to that extent at least, is certainly void. I will now proceed to enquire whether he did or not.
The only objection which has been made to this award to show that the arbitrator exceeded his authority is, that it awards a sum of money to be paid by Sutherlin, instead of awarding, as to him, that Pollock’s representative had a lien upon the land
If this were so, it is manifest that the objection would be purely technical, and that Sutherlin would be actually benefited by the arbitrator’s making the •award as he did. We may presume, as no doubt was the fact, that the land was worth, and would at any time command in the market, a great deal more money than was awarded against Sutherlin; that Sutherlin was a man of wealth, had the command of money, and would instantly, of course, have paid the amount of the lien upon the land so soon as it was ascertained, and not incur the risk of a sacrifice of the land at a public sale. The arbitrator may therefore very reasonably have supposed that all that Sutherlin desired to know was, whether his land was liable to the lien claimed by Pollock, and, if so, how much money he would have to pay to relieve the land of the incumbrance, and thus to perfect his title; and, taking this view of the subject, the arbitrator therefore may have apportioned the amount due to Pollock’s administrator from Fitzgerald, between Sutherlin and Buford on equitable principles, and awarded the payment by them of their portions respectively, and that upon the payment of -Sutherlin’s portion the land should be discharged from the. said incumbrance, and the deed from Pollock to Fitzgerald become valid and effectual.
Of course the arbitrator had no right to exceed his authority, and, if he did so, his award to that extent is invalid, even though he may have supposed, and it may be true in point of fact, that the parties would be benefited by such excess of authority, unless, indeed, they confirmed it afterwards.
If the arbitrator did not exceed his authority in awarding the payment of a sum of money by Sutherlin, instead of merely awarding that the land was liable to a lien therefor, then the award is not invalid in that respect, even though he may have erred in matter of law or fact in so awarding. All the said matters of controversy, both of law and, of fact, were expressly referred to the arbitrator by the parties, who agreed to be bound by his award as final and decisive. If therefore his award, being within the terms of the submission, was manifestly wrong, both in law and fact, no court could for that cause set it aside: Because the parties preferred to submit their controversy to the final decision of a judge of their own choosing, rather than a court constituted by law,' and it would be not merely an excess, but a usurpation of authority in snch a court to set aside an award, however unjust it might appear to be, merely upon the ground that there was an error of law or of fact in the decision of the arbitrator.
But can we say that there is an error of law or fact in the decision of the arbitrator in this case? We do not know what documentary or other evidence there was, or what was said by the parties or their counsel before the arbitrator. None of these matters are set out in the award, nor was it necessary that they should
But even if the arbitrator erred, and plainly erred, in his decision in this respect, no court has a right to set aside his decision, and make one of its own. All the said matters of controversy, both of law and of fact, were expressly referred by the parties to his decision, which, whether right or wrong, must be final and conclusive,- unless the award be invalid; which it cannot be upon the ground that the arbitrator erred in his judgment, either upon the law ■or the fact. Smith $e. v. Smith ¿•c., 4 Band. 95, is authority upon this point. The question submitted in that case was, whether certain slaves were to be considered as undisposed of by a testator, or were to go to his residuary legatee. The arbitrators de
Other presumptions could, no doubt, be fairly made to sustain the validity of the award; but surely I have already said enough for that purpose; and I am therefore of opinion that the arbitrator did not exceed his authority in awarding that Sutherlin should pay to Pollock’s administrator the sum of $7,574.67, with interest, as aforesaid.
These eases were very ably argued by the counsel on both sides, and I would be glad to notice in detail other grounds of objection taken by the counsel of Sutherlin and Buford, and also to review the authorities referred to by them; all or most of which I have examined. But I do not think it necessary to do so, after what I have already said. The learned counsel for those parties contended that the arbitrator awarded what he was not authorized to award, to wit: the payment of money by Sutherlin and Buford respectively to Pollock’s administrator; and omitted to decide what alone he was authorized to decide, to wit: in regard to the conflicting claims recited in the preamble, and especially the claim of Pollock’s administrator to a lien upon the land for the payment of the balance claimed to be due to him by ' Fitzgerald. They seemed to think that the proper and only office of the arbitrator was, to' respond directly to the question of lien or no lien, and other like questions arising on the recitals of the preamble. And that the question of lien or no lien lies at the foundation of the controversy, and was necessary to be decided before and above all other questions in the case. With the high
I have referred to very few authorities in the foregoing opinion, because I think there can be no controversy in regard to the law involved in the case. I might refer to many cases, English and American, in support of what I have said in regard to the favor which is shown to awards; but surely I need not; for their name is legion, and they speak to that effect, una voce. Hone of those decisions tend more strongly iú that direction than do those of this court. Among them are the following: Ross v. Overton, 3 Call 309; Morris v. Ross, 2 Hen. & Mun. 408 ; 1 Rand. 449, Richards v. Brockenbrough’s adm’or; 3 Id. 122, Head v. Muir, &c.; Armstrong v. Armstrongs, 1 Leigh 491; and Bassett’s adm’or v. Cunningham’s adm’or, 9 Gratt. 684. In Richards v. Brockenbrough, the court say that “everything is to be presumed in favor of an award.” In Head v. Muir, &c., Judge Carr, in delivering the opinion of the court, reviews very fully the subject of awards. In Armstrong v. Armstrongs, the same great judge delivered an opinion in which all the
The result of my opinion is, that in the case of Pollock’s adm’or v. Sutherlin, the judgment of the Circuit court must be reversed, the defendant’s demurrer to the plaintiff’s replication overruled, and the cause remanded for further proceedings to be had therein; and in the case of Buford v. Pollock’s adm’or, the judgment of the Circuit court must be affirmed.
Anderson, J. concurred in the opinion of Moncure, P.
Dissenting Opinion
dissented. He thought the arbitrator exceeded his powers.
Sutherlin’s case reversed. Bupord’s case ap~ PIRMED.