118 Mass. 224 | Mass. | 1875
When parties have entered into an agreement to refer claims which are disputed, and an award has been made by virtue of such agreement, it is entirely competent for them to waive such award by mutual consent. Girdler v. Carter, 47 N. H. 305. As they may waive any settlement of disputed claims which they themselves have once agreed to, so they may waive any which has been made for them by others acting at their request. If, after a matter has once been referred to arbitration and an award has been rendered, the parties agree to re-arbitrate the matter in dispute, this must be treated as abrogating the previous award, and as putting the parties in the same position that they were at first. If the re-arbitration is proceeded with, and a valid award is made, it is binding by virtue of the second agreement, under which it was made. If the re-arbitration fails by reason of either party refusing to perform, the other has his remedy by action for breach of the agreement; and if no valid award is made, either may sue the other upon the original causes of action. The parties occupy towards each other the same attitude that they would if the first agreement and the award thereunder had not been made. Burnside v. Potts, 23 Ill. 411. Eastman v. Armstrong, 26 Ill. 216. It is not the fact that a valid award is made under the second agreement, that operates to destroy the effect of the first, but that a second agreement to refer the same matter treats it as one still disputed between the parties. It
Nor does there appear to be force in the suggestion that what was to be submitted under the second agreement was the award under the first. The exceptions state that the evidence tended to show that both parties were dissatisfied with the result of the first reference and award, and agreed to enter into the second agreement; that this last agreement was drawn up by the plaintiff, who now seeks to enforce the first award; that it was signed by himself, and that he sent for the defendant to come and sign it, which he did. The plaintiff further testified that he used before each board of arbitration the same bill of items, and that it embraced his whole claim against the defendant. Upon this evidence it cannot be doubted that what was referred and intended to be referred by the second agreement was the same matter referred by the first. The ruling of the court that the second agreement would not be a waiver of the first award, unless the reference thereunder proceeded so far as to have a valid award made, was therefore erroneous.
As the validity of the second award is asserted by the defendant in his answer, in which he sets it up against the original claim of the plaintiff, and as at a second trial it must almost necessarily be discussed, it is proper to say that the ruling of the court was upon that point correct. It is proved that the arbitrators wholly omitted to pass upon or consider a claim for money lent made by the defendant, which the plaintiff contended was a sum paid to him by the defendant on account of a mill which was the principal subject of controversy between the parties, and that this matter thus submitted by the defendant was not covered by the award. It has been often recognized that an award was bad where the referees refused or neglected to take into consideration demands within their authority, and brought before them by one of the contending parties. Houston v. Pollard, 9 Met. 164. Warfield v. Holbrook, 20 Pick. 531. Sperry v. Ricker, 4 Allen, 17. Sohier v. Eastabrook, 5 Allen, 311. This was a matter
Exceptions sustained.