Rochester v. Whitehouse

15 N.H. 468 | Superior Court of New Hampshire | 1844

Parker, C. J.

The agreement stated in the plea did not constitute a technical submission to arbitration. Kyd on Awards 6. It was a contract to receive certain real estate in payment of a debt, at the appraisal of persons to be appointed with authority to make the appraisal. The case therefore is not technically within the rule of law which authorizes a party to a submission to revoke the authority of the arbitrators. But the principle upon which that rule is founded has a broader application. There may be a revocation of authority other than that given to arbitrators to make an award. The town could revoke the authority of the persons appointed to appraise the property, and refuse to proceed farther. “ All kind of authority is in its nature revocable.” Kyd on Awards 29. A party may revoke an authority to one to be his factor. 4 Co. Rep. 163, Vynior’s Case. In general, the principal has a right to determine or revoke the authority given to his agent, at his own mere pleasure ; for since the authority is conferred by his mere will, and is to be executed for his benefit, and his own purposes, the agent cannot insist upon acting, when the principal has withdrawn his confidence and no longer desires his aid. Story on Agency, § 463. Although the contract is not technically a submission to arbitrators, because there was no matter of difference or question of right between the parties submitted to the appraisers, and they were not to make an award, they had an authority conferred upon them by the agreement, in the nature of that given by a submission, which constituted them the agents of the parties to do certain things, and the case is within the principle which authorizes the revocation of the authority conferred.

The selectmen are the general agents of the town. They are to “ manage all the prudential affairs of the town.” Rev. Stat ch. 84, § 2, and, by special vote, in this case they were to choose the appraisers. If they had refused to proceed, no appraisers would have been chosen, and nothing farther could have been done. They were to carry the agreement into execution. Their acceptance of a deed from the defendant, after an appraisal, would have .bound the town. If they refused to complete the contract it could not be carried into effect. As the general agents of the town, then, they had power to refuse to proceed ; and they did so, by what was in form a revocation of the authority of the agents. Their act in this particular was the act of the town, and the issue is, therefore, rightly found for the plaintiffs. The issue whether there had been a revocation, is not an issue of law, but of fact.

The plaintiffs are entitled to judgment in another view of the case. The contract was executory. It would not have been executed and the plaintiffs’ debt discharged, except by their receipt of the property in payment at the appraisal. This the selectmen refused to do, and the plaintiffs’ debt, upon which this action is founded, has therefore never been satisfied. “ A negotiable note was made to the plaintiff by the defendant, who held a note made by the plaintiff, but had it not with him at the time, and it was agreed that the two notes should be set off, one against the other, so far as the smaller would pay the larger. It was held, that this agreement was executory, and therefore w'as not an ex-tinguishment of the smaller note.” 14 Pick. R. 315, Carey vs. Bancroft. The plea shows the nature of the contract, from which it appears that it was executory, and it avers that the tenant, in pursuance and performance of the agreement and appraisal, tendered to the demandants a good and sufficient conveyance of the land, and tendered and offered to them possession thereof, which the demandants refused. It appears, then, from the plea itself, that what is relied upon and set forth in the plea furnishes no defence ; and if the verdict had been for the defendant, the plaintiffs on these pleadings must have been entitled to judgment non obstante. The issue whether there was a revocation of the authority of the appraisers, would in that view be immaterial, but there could not be a repleader, because the matter of the plea shows that no other issue could avail. 1 Chitty’s Pl., ch. 9 ; 1 Levinz Rep. 32, Serjeant vs. Fairfax; Willes Rep. 532, Parnham vs. Pacey, note. The court are bound to give such judgment as appears upon the whole record to be proper, without regard to the issues found. 4 East Rep. 502, Le Bret vs. Papillon. The refusal to proceed and complete the contract may be such a breach of it as will entitle the defendant to an action for damages, but that is a different thing from an actual appropriation of the property in payment.

Judgment for the plaintiffs„