113 Mass. 114 | Mass. | 1873
The law is now settled that the mutual promises of the parties in an agreement for arbitration are sufficient consideration each for the other, and that whichever party, without right therefor, revokes the'authority of or prevents the arbitrators from acting, is liable to an action, even if he is not bound under a penalty. Charnley v. Winstanley, 5 East, 266. Marsh v. Bulteel, 5 B. & Ald. 507. Warburton v. Storr, 4 B. & C. 103. Skee v. Coxon, 10 B. & C. 483. Rowley v. Young, 3 Day, 118. Hawley v. Hodge, 7 Vt. 237.
If an action may be maintained for revocation of an agreement of submission, the next inquiry is whether the defendant was justified in thus revoking it. The report finds that the agreement was entered into by the parties under their hands and seals; that the conditions preliminary to a hearing were complied with by the plaintiff; and that immediately after the service of notice of an appointment by the arbitrators of a time of hearing, the defendant revoked the agreement of submission. It appears further, that the plaintiff thought that certain claims which he
At the trial in the Superior Court, the case was submitted to the jury upon the auditor’s report; and as the defendant claimed that he was justified in revoking the submission, because the plaintiff had concealed the fact that these claims belonged to Daniel E. Pond and that he was acting for Daniel E. Pond and not for himself in this agreement for reference, (which point the auditor had found against the defendant,) the case was submitted by the court to the jury, upon the agreement of parties, upon three inquiries. By the answers to these it is established that the plaintiff did not, before the revocation of the agreement, inform Daniel L. Harris (who was the defendant’s agent in making the negotiations which resulted in the deed of submission) that he held said claims in trust for Daniel E. Pond, or that Daniel E. Pond was the owner thereof; and it is established that such trust and ownership was not made known to the defendant, and that Daniel L. Harris had
That the title to these claims was in the plaintiff was undisputed, and that they were to form a part or the whole of the subjects upon which the referees were to pass ,was known to the defendant. His claim that he was justified in revoking the agreement for reference, because the plaintiff had failed to inform him that if he recovered anything upon them, after payment of the expenses and for his own trouble, it was to be paid over to Daniel E. Pond, is one which cannot be sustained. If the plaintiff had title to the claims, and was authorized to deal with them'as his own, to convey or discharge them, (all which the conveyance from Daniel E. Pond enabled him to do,) what he did or was to do thereafter with the proceeds was a matter of no concern to the defendant, unless he made it so by some inquiry. He knew through what source the plaintiff must have obtained control of the claims. If he had any desire to learn whether any one else had any interest in the avails of them, before he can complain of the plaintiff for concealing any matter in relation thereto, he should at least show that he endeavored to be informed on the subject. The plaintiff had no reason, so far as the report shows, to think that it was a question of the least interest to defendant whether the plaintiff was to put the proceeds into his own pocket or pay them over to some one else. So far as appears, the defendant was not in the slightest degree .njured by his want of knowledge of this fact, or his defence in any way impaired or abridged thereby.
The case of Winchester v. Howard, 97 Mass. 303, cited by the defendant, does not sustain his view of the present case. In that case it was in evidence that in answer to inquiries of the defendant
The defendant contends that the plaintiff had only a verbal authority from Daniel E. Pond to make the agreement; but this is a matter of no importance. Daniel E. had conveyed his whole title in the claims to the plaintiff, who could transfer, discharge and dispose of them in any way, and, under these circumstances, needed, so far as the defendant is concerned, no further authority of any kind in reference to the arbitration. It would have been impossible for Daniel E. to have broken up the agreement of submission made by the plaintiff, merely because he had a right to make him account for the net proceeds.
We are, therefore, of opinion that the plaintiff is entitled to recover upon the facts stated in the report, and are next, to consider by what rule his damages are to be assessed. It is argued that, as it is found by the auditor’s report and by the jury that there was nothing due upon these claims, the plaintiff is entitled to no damages, or at most to but nominal damages, on account of the revocation, and that it must be deemed that the arbitrators would have come to the result at which the jury have arrived. But the injury that he has sustained by the wrongful act of the defendant is that he has been deprived of his right to submit the claims to the tribunal which the parties had agreed upon. The expenses to which he has been subjected by reason of his necessary preparation for a trial before the arbitrators, on account of his own loss of time and trouble, and in employ
In Hawley v. Hodge, 7 Vt. 237, the plaintiff had travelled four hundred miles’ to attend a session of the arbitrators; had employed and paid counsel, and had paid the arbitrator; and it was held, in an action by him for damages, that where a party revokes a submission, he must pay all damages occasioned thereby, including the cost and expenses which the party had been subjected to in preparing for trial, to which he would not have been subjected but for the submission, and which he could not recover in any other way. See also Rowley v. Young, 3 Day. 118; Blaisdell v. Blaisdell, 14 N. H. 78.
For the trouble and expense which the plaintiff had been at in making the contract, he would not, however, be entitled to re-rover ; his damages must be only for the breach of the contract.
The judgment for the defendant is therefore to be set aside, and judgment ordered for the plaintiff; and as it is impossible for us to determine by the report upon what principles the auditor assessed the damages, the amount for which such judgment is to be rendered is to be determined, upon the principles above indicated, by an assessor to be appointed by the Superior Court.
Judgment for the plaintiff.
At the argument of this and the remaining cases at this term, Devens, J., was present, and Ames, J., absent, unless otherwise stated.