Reynolds v. Reynolds
15 Ala. 398
Ala.
1849
Check Treatment
COLLIER, C. J.

It is well settled, that an award must conform to the submission under which it is made. Adams v. Adams, 8 N. Hamp. Rep. 82; Solomons v. McKinstry, 13 Johns. Rep. 27; Bean v. Farnam, 6 Pick. Rep. 269; Stevens v. Gray, 2 Harring. Rep. 347; Gibson v. Powell, 5 S. & Marsh. Rep. 712; Lee v. Onslott, 1 Arkansas Rep. 206. If, therefore, arbitrators transcend their authority, pro tanto their award will be void, and will stand good for the residue, unless that which is void, affects the merits of the submission, so that it cannot, without injustice, be separated from it; but if it forms the consideration for what the other party is required to do, the award will be void in toto. Taylor v. Nicholson, 1 Hen. & Munf. Rep. 67; Skillings v. Coolidge, 14 Mass. Rep. 43; Martin v. Williams, 13 Johns. Rep. 264; Cromwell v. Owings, 6 Har. & J. Rep. 10; Gordon v. Tucker, 6 Greenl. Rep. 247; McBride v. Hagan, 1 Wend. Rep, 326; Brown v. Warnock, 5 Dana’s Rep. 492; Huff v. Parker, 4 Dall. Rep. 285; Gomez v. Garr, 6 Wend. Rep. 583; Id. 9 Wend. Rep. 649; Young v. Shook, 4 Rawle’s Rep. 299; Banks v. Adams, 10 Shep. Rep. 259.

All reasonable presumptions shall be made in favor of awards; and if, by the application of this principle, an award can be brought within the submission, and is in other respects unexceptionable, it will be sustained. Tankersly v. Richardson, 2 Stew. Rep. 130; Armstrong v. Armstrong, 1 Leigh’s Rep. 491; Parsons v. Aldrich, 6 N. Hamp. Rep. 264; Van Landingham v. Lowery, 1 Scam. Rep. 240; Caton v. McTavish, 10 Gill & J. Rep. 192; Karthans v. Ferrer, 1 Pet. Rep. 222; Fryeburg Canal v. Frye, 5 Greenl. Rep. 38.

An award should be so certain as to enable the court to determine what it decides. McKeen v. Oliphant, 3 Har. Rep. 442; Gibson v. Powell, supra; Hazeltine v. Smith, 3 Verm. Rep. 535; Dubury v. Clifton, Cooke’s Rep. 329; Carter v. Ross, 2 Root’s Rep. 507; Purdy v. Delavan, 1 Caine’s Rep. 304; Gonsales v. Deavans, 2 Yeates’s R. 539; Kingston v. Kincaid, 1 Wash. C. C. Rep. 448; Borrets v. Patterson, 1 Taylor’s Rep. 37. Under the influence of this rule, it has been held, that an award which directs one party to pay to the other a certain sum within a prescribed time after the date of the-award, with interest until paid, is sufficiently *404certain. Skeels v. Chickering, 7 Metc. Rep. 316. So an award for a sum certain, and “ the costs,” was adjudged good; it being also said, that if it was uncertain, in not stating the amount of the costs, it would still be good as to the debt. Brown v. Warnock, 5 Dana’s Rep. 492. And an award for “the amount of the note” in controversy, has been held not obnoxious to the objection of uncertainty. Coxe v. Gent, 1 McMullen’s Rep. 302.

Although awards must be mutual, yet an award is not objectionable for the want of mutuality, which merely directs the payment of a sum of money by one party to the other, without ordering a release or other act to be done by the one who is to receive it. Gordon v. Tucker, 6 Greenl. R. 247; Doolittle v. Malcom, 8 Leigh’s Rep. 608. If both parties are required to do certain acts, and as to those to be done by one of the parties, the acts are void, and the void part is the consideration of the acts required to be done by the other party, the award will be inoperative in toto. Nichols v. Rens. Ins. Co. 22 Wend. Rep. 125. It is, however, said to be no valid objection to an award, that both parties will not have the same remedy to enforce performance; one party may be entitled to recover money by judgment or action, and the other to enforce a compliance by an attachment. Kunckle v. Kunckle, 1 Dall. Rep. 364. Nor is an award defective for want of mutuality, because it directs one party to perform something on his part before the other releases, where the thing to be performed is independent of the release. But where it directs money to be paid on one side, and some other thing to be done on the other, if the court cannot enforce both, they will enforce neither. Kunckle v. Kunckle, supra.

In Cox v. Jugger, 2 Cow. Rep. 638, it was held, that when one part of an award was irreconcileable with another, the latter should be disregarded.

This hasty sketch of legal principles, may suffice to furnish a guide to a correct conclusion. In the case at bar, the action was founded on a bill single, dated the 14th October, 1841, by which the defendant promised to pay the plaintiff tfye sum of $1,000, on the 1st of March, 1846. The defendant pleaded — 1. Want of consideration. 2. Failure of con*405sideration. 3. Fraud. Thereupon an order was made, by-consent of parties, to refer the cause to the arbitrament of certain persons, whose award was to be made the judgment of the court. The arbitrators made their award, in which they say, they have thoroughly considered the matters in dif~ ference, and upon the premises adjudge, “First, that the said William Reynolds, defendant, shall have and hold the right, title and interest, in, and to, the negro boy, Nelson, and that in consideration of the'same, we confirm, and order or decree, that the note for $1,000, payable the first day of March, 1846, drawn 'in favor of Irby Reynolds, and signed by William Reynolds, be paid. And we do further award, that William Reynolds, the defendant, pay the costs of the suit.”

As it respects the slave, it does not appear that he was in the possession of the plaintiff, or that the plaintiff was required to do any act to invest the defendant with the title to him. But the fair inference from the pleadings, and the terms in which the award is expressed, is, that the slave was the consideration of the note, and that the arbitrators merely decided, that there was nothing in his condition, or the circumstances under which the defendant purchased him, that furnished a valid reason why the plaintiff should not recover. This conclusion is the natural result of the principle which declares that all reasonable intendments shall be indulged in favor of awards. It seems to us, that this interpretation is so palpably just, as to allow no scope for argument, and is sufficiently illustrated by its statement.

It is no objection to the award, that it does not direct, in totidem verbis, to whom the note was to be paid. The action was brought by Irby Reynolds, the payee, and himself, and the defendant submitted the cause to arbitration, so that there is no ground for the objection of a want of certainty in this respect. In Callahan v. McAlexander, 1 Ala. Rep. 366, the judgment of the circuit court sustaining an award was reversed, because the award did not determine who should pay the money. But that case was submitted before suit brought, by a reference out of court, pursuant to the statute. Besides, it appeared prima facie from the record, that another person than the defendant in the judgment, was liable *406to pay the plaintiff,- and upon this ground, this court rested its opinion.

To entitle the plaintiff to his judgment, no act was necessary as a condition precedent. If the slave referred to, in the award, was not in the possession of the defendat, or subject to his control, he should have made proof of the fact, and urged it to the circuit court as a reason why the plaintiff should not recover. There is no basis, in the absence of proof, upon which we can rest a presumption in his favor. If the consummation of the defendant’s title required any thing more than the award, so far as the plaintiff is concerned, it will become perfect by the satisfaction of the judgment — the receipt of the money will estop the plaintiff from asserting an adversary right.

. As it respects the costs, they can be ascertained by the clerk, as in other cases, and the failure of the arbitrators to ascertain the amount with exactness, cannot prejudice their award. In determining that the defendant, was liable to pay the note, they must be understood to charge him according to its legal effect, with the interest; which the clerk was also ^competent to compute. The citations on this point are direct, and establish the correctness of our conclusion.

The consequence is, that the judgment must be affirmed.