Shepard v. Merrill, 2 Johns. Ch. 276

Shepard v. Merrill

2 Johns. Ch. 276 | New York Court of Chancery | 1816

The Chancellor.

[ * 280 ]

There is no ground stated, and proved, for the interference of this Court. The question of rent was not submitted. This is admitted by the bill and answer. Whether the rent had been liquidated up to the day of the surrender and submission, and paid, or otherwise settled, or whether it was due or not, or would be due and payable on the first of May, were questions not within the submission, and they did not enter into the consideration of the arbitrators, or into their award. There is then no mistake in the award, either alleged or proved, and, consequently, no ground for the bill. The defendants ought to be permitted to go on with their action at law upon the *award. Whether the plaintiff has matter for a valid set-off to the demand at law, is not for me to determine in this suit. If he has any rent due, he can set it off. His difficulty arises, as I apprehend, from the contract of the 18th of April, 1815, by which it is agreed, that the lease be absolutely vacated and surrendered, and the articles of stock and furniture on the farm forthwith returned. This surrender did, probably, in judgment of law, extinguish the *280growing rent; (Bain v. Clark, 10 Johns. Rep. 424.) and unless it be charged and shown, that this contract, in that part of it, was founded in fraud, imposition, or mistake, there can be no relief here. It is sufficient, however, to say, that the bill is not founded on any such allegation. The true point submitted, was the sum that the one party or the other was to pay for being delivered, by the surrender, from a good or bad bargain, as it respected the whole term; without reference to the question, whether the surrender, in presentí, extinguished the rent growing, and not due when the lease was given up. This, I think, was the meaning of the articles of submission, and the parties certainly put that construction upon them, by not bringing the question of rent before the arbitrators. The arbitrators determined secundum allegata; and there can be no complaint of the award, because they did not investigate and decide a point not brought before them. It may well be that the plaintiff did not intend to extinguish the growing rent, by the acceptance of a surrender before the rent became due. He ought, then, to have raised that point before the arbitrators, or have come into this Court, on the ground of a mistake in the articles of the 18th of April, if he felt himself able to show it. As the case stands, I do not see how I can be authorized to set aside the award.

Bill dismissed, with costs.