Shafer v. Shafer

6 Md. 518 | Md. | 1854

Tuck, J.,

delivered the opinion of this court.

It is manifest from this record, that the award filed by the referee, on the 31st of August 1847, was not considered by the parties as a final ascertainment of the credits claimed by the defendant. That award was made at the request of the plaintiff’s attorney, he agreeing at the time, that if the defendant should thereafter show any further credits to which he was legally entitled, they should be allowed him. Thefi.fa. was issued on the 20th of March 1848, and on the Slh of May 1848, while that writ was in the sheriff’s hands, the parties are found entering into another reference to Messrs. Schley and Spencer, with power to appoint an umpire. There can be no mistake as to the object of this last reference. It appears that there had been transactions between the parties of long standing and large amounts, out of which, as George Shaffer states, arose the cause of action on which the judgment was entered. In a spirit of fairness and with a view to a full and final settlement, they agreed to this last submission. Mr, Spencer’s affidavit shows, that after Nesbitt’s first award, “the defendant, by his son and agent, George Shaffer, made repeated efforts to establish a demand of Henry Shaffer against Jonathan Shaffer, by virtue of an old partnership, of which Jonathan and Henry were members, in order to obtain a cross-demand against Jonathan, wdth a view to offset the same against this judgment, and, to that end, had submitted the partnership affairs to their attorneys, who, not being able to agree, appointed an umpire. He also states, that he considered the matter of credits on the judgment out of Nesbitt’s hands, “both on account of the great length of time and the substitution-of other referees.” He goes on to show, that the joint accouut was gone into by the referees and umpire, and an award made in June 1851, which had been lost. George Shaffer states, that “subsequent to the judgment, the parties agreed to submit all matters in dispute between them, out of which said claim or judgment arose, to the arbitration and decision of the counsel, with power to choose an umpire, with the distinct agreement and understanding, that the judgment should repose until the decision of the arbitrators was made. That if they decided that any sum of money was due from Henry to Jonathan, the judgment should stand as security for such sum; and if the amount ascertained to be due from Henry to Jonathan should be less than the whole amount of the judgment, then the judgment should be rendered accordingly.”

It is clear, that the second submission was designed to take the place of the first, and that Nesbitt’s power over the judgment, as to ascertaining credits, ceased from May 1848, when, as appears by the statement of Judge Weisel, filed with Mr. Spencer’s affidavit, the agreement for the second reference was made. It is, therefore, unnecessary to decide what was the effect of the agreement made by Mr. Spencer, when the first award was filed as a reservation of power to Nesbitt to make a second award. But, because of the second submission, we are of opinion, that his last award was void and should have been set aside by the court.

We are next to inquire, what was the effect of this submission upon the judgment and outstanding/./». If, as was said in argument, this reference has failed by reason of the loss of the papers and of the award that was made out, it does not follow that the plaintiff is authorised to enforce his execution. The award Was filed by Nesbitt under, and only because of, an agreement of the plaintiff’s counsel that further credits might be ascertained. After this another agreement was made; and, because this has not been carried into effect., shall the consequences be visited on the defendant alone when he does not appear to have been altogether in fault? We have - no doubt that a court of equity would have interfered to prevent such an unjust proceeding. 2 Sion/s Eq., secs. 880,885. Hardship may have resulted from the delay, but the fault, if any, does not rest more on the defendant than on the plaintiff. His .counsel was one of the referees, and had the same means, and was under the like obligation, to hasten a termination of the .controversy. It appears to have been a complicated and troublesome dispute which the parties and their counsel were endeavoring to settle in an amicable manner. These efforts having failed, the parties resorted to what they deemed their legal remedies in the premises, though, as we think, on both sides, contrary to the agreement into which they had entered; the one in obtaining a second award from Nesbitt, and the other in enforcing theft. fa. before the credits were ascertained.

The defendant might, by motion against the ft. fa. or to have credits entered according to the submission and award, have availed himself of the equities growing out of these acts of the parties, upon the principles adjudged in Job vs. Walker, 3 Md. Rep., 129. The motion by the appellant to quash the sheriff’s return, and to reject the credits allowed by the second award, and order other process, and the rule to show cause, necessarily had the effect of bringing the whole, matter before the court to be determined according to the agreement of the parties, because jf credits had not been entered pursuant to the last award, supposing it not to have been lost, or if that reference had not been determined, the rule must have been discharged. And if, on the hearing, it appeared that for any cause the referees could not return an award, the court should have gone into an examination of demands between the parties in order to have ascertained the true state of their accounts, that proper credits might have been entered on the judgment. In this way, we think, justice might have been effected without resorting to the equity side of the court; and until this controversy, as to credits, was ended, the plaintiff was not entitled to further process.

There is no question before us on the validity of the first award, the motion and proceedings having reference only to the second and the sheriff’s return to the ft. fa. We therefore intimate no opinion as to the power of the referee to file a partial award under the circumstances of this case.

The judgment must be reversed and the cause remanded for further proceedings under the rule to show cause.

Judgment reversed and procedendo awarded.