13 Johns. 27 | Court for the Trial of Impeachments and Correction of Errors | 1815
gave the reasons for the judgment of the ■court below, which were the same as those stated in the report of the case in that court.
The cause was argued by Van Vechten, for the plaintiff in error; and by Woodworth, for the defendant in error.
On the argument, two objections were urged against the judgment of the supreme court:
1st. That the award was not confined to the subject matter of the submission :
2d. That it was not final. With the latter objection, a want of mutuality in the award was in some measure mixed; but as that was not much relied upon, and as the opinion of the supreme court places that question on a footing which cannot be controverted, I shall confine my examination to the two questions stated.
The difficulty, in this case, does not arise from a difference of opinion respecting the principles on which awards are to he construed, but in the application of those principles ; for, if the award is not confined to the subject matter of the submission, or is not final, it is void.
From- a hateful examination, however, of the questions which, -in.this case,'are.presented for our decision, there appears to be fewer and less difficulties than d apprehended when | first heard the argument;' and f am entirely'satisfied that •the-judgment of the supreme court is correct, and ought to be affirmed. .
The- submission, in this cause, was limited to the copartner-. ship, accounts oí Levy Solomons & Company; but the umpire, in. his award* -does not a ver that his umpirage was- made .“ of and' yppq the matters. submitted'it is general* and awards “-that Saíomons shall pay M‘Kinstry 423l. 19s. 4d., as M‘Kinstry appeared to have a just claim on Solomons 'for that sum,- or more, if insisted upon.’5' . It -Is contended -that 'here, arises án un%. eertainty, from the award iiot being limited -to the submission, ■which renders it void,' ./If the rule, réquiring t-hat'an award shall not go beyond the submission, js to be so-.strictly'cQñstruéd-as' to malm'it necessary that it should beaverredydn te/ms, to.besa limited, then this award would be clearly bad, because it may, 1‘rorn the comprehensiveness 'of its terms, embrace differences -not‘.submitted ; but the law does not require this: extreme' nicety, A mime, ju'st and reasbnab'le interpretation .of- the rule, One, more consonant to common sense, and better-calculated'to pro*-' mote,the ends- of justice* is, that -W-here the, words of. an\awnr<| are: so- comprehensive that they may take in.-matters-not -within. the submission., yet it shall be-presumed- that nothing beyond it was awarded,- y-nless the Contrary be expressly shown;. and the correctness-of this cpumpuetion'is fully established by Kyd in his Treatise on Awards, 170., and the authorities there cited; and, also, in the case of Hopper v. Hasket, (1 Keble, 738.)
The award is said not to be final, because the umpire alleged that more was due than the sum awarded, if. insisted on, and that. M'-Kinslry, therefore, was not bound by it.; and that this award would not have been a good bar against a suit he might have brought on the-original demands. It does not appear to me that this conclusion follows, necessarily, or that it is even a fair and rational one.
The award was not drawn with technical nicety, but with Sufficient accuracy'to communicate, distinctly, the intention and meaning of the umpire ; the obvious interpretation is, that, from the evidence produced, he was satisfied that a greater sum was strictly’ due to M‘Kinstry than what was, awarded; but as M‘Kinstry did not think proper to insist upon, or claim, the whole, he had, with his assent, given his award for á less sum,As the umpire had taken upon himself the umpirage, he was in duty bound to do exact justice between the parties; to award
was not final,- which, on the argument, struck me as being se* nous'; but, from subsequent reflection, I am convinced that it is as untenable as. .the others, ‘ The- award provides, that should any errors in addition, or calculation of interest, be found in, the account, upon proof of such errors being made' by Solomon? to M'Kinslry, the latter should immediately refund the amount ■thereof. Itpyas-said, that there were several modes of calculating interest, and that the adoption of the one or the other, would produce a very different result as to the amount-. It is true that .thfere .are different modes,., which may sometimés oeca-.' sion a material variance. • But the fair and rational presumption, is, that the umpire adopted the mode.recognised in the.courts of justice in the country where the contract was made ; and,, at all events, as the' parties had submitted their differences to arbitrament, they were Concluded by the-mode adopted by the umpire ; by their submission, they constituted him:- as much their judge on that question as any other, and were .as much bound by his decision as they would have been by. the judgment of & court of law; the -mode of calculating of interest was not, therefore,, among the objects of revision and correction provided for by the. award; the errors to be revised, were exclusively confined to mistakes whicli the umpire might have made in the multiplication or addition pf figures. There was no part of the merits of the controversy left open, nor did the umpire delegate any portion oí his power or authority to another. The sum due, •the time' for which it should bear interest, and the manner in which.that interest was to be calculated, he had determined.
This case does not come Avithin the, reason lof any of those Where awards have beeneonsidered as void,, in consequence of containing provisions for réfühding a part of ,thé sum aAvarded, under certain circumstances. These cases will all be fóund to apply, only where the sum to be refunded is part of the principal, and depending upon evidente, and; therefore, entering into- the merits of the controversy; and not, as .in the present tase, which depends upon mere ádtKmetical ehlculation»
I am for affirming the judgment of the supreme court..
This being the opinion of the court, (Bishop, Senator, dissenting,) it was thereupon ordered and adjudged, that the judgment of the supreme court be affirmed, and that the- defendant in error receive his damages, by reason of the delay of execution, and their costs in this court; and that the record be remitted, &c„'
Judgment affirmed»
2 Mod. Kyd on Awards, 371.