10 N.H. 254 | Superior Court of New Hampshire | 1839
The first exception taken in this ease is, that the award is not mutual. The submission, however, is in full of all suits, controversies, claims and demands whatsoever; and the award recites, that having heard, examined and considered all the allegations and witnesses of both parties in relation to the same, it is adjudged that the plaintiff recover of
By the early English authorities it was holden, that an award that one party shall pay the other a sum of money, is bad for want of mutuality, unless it appear upon what authority the money is to be paid, or something is awarded e con-verso : also, if arbitrators award every thing to be performed on one part, and nothing on the other, which is said to be the case here, their award is void. 1 Ld. Raym. 246, Bacon vs. Dubarry; 1 Saund. 326, Veale vs. Warner; 1 Lutw. 520, Marks vs. Marryatt; Ditto 281, Russell vs. Williams.
Where, however, from the recital in an award it appeared that the arbitrators designed the award to be a final discharge of all claims by the party in whose favor the award was made, and awarded a given sum to such party, it was holden tobe mutual. 1 Lutw. 54, Elliot vs. Cheval; 1 Lev. 58, Harris vs. Knife; Ditto 133, Hopper vs. Hackett.
And in Peters vs. Pierce, 8 Mass. R. 398, Mr. Justice Sedgwick remarks: “It has frequently been determined, where an award has directed money to be paid, or an act to be done by one of the parties only, it is sufficient if the award appears to be made de et super presmissis. The reason is, that in such case a performance on one part will operate as a release on the other. Now the expression, ‘ of and concerning the premiseshas no peculiar effect, more than any other expression of the same meaning ; and I think that the arbitrator, when he says, as in this case, after examining all the business referred to him, he makes his award, signifies his intention that it shall be a final decision of the subjects referred to him, as clearly as he would have done if he had expressed his award to be made of and concerning the premises.” 1 Wills. 28, Cayhill vs. Fitzgerald; 1 Bur. 274, Hawkins vs. Clough.
This authority is conclusive of this case. There are other authorities which go directly to the point that an award of
Under these decisions the award in this instance is clearly mutual; and it is also final, which disposes of another exception in this case.
The award of a given sum, under this submission, and payment of the same, operates as a discharge of all claims and demands of the plaintiff against the defendant. The declaration recites the award, and alleges that when paid it will be in full satisfaction of all such demands. This is excepted to, as a variance from the award. The award, however, is truly recited, with the additional allegation of its operation as a discharge at law ; and it is held to be sufficient in all cases to declare upon an instrument according to its legal effect. There is no essential variance, therefore, betwixt the declaration and award.
A farther exception is taken, that in the awards given to the parties there was some slight variation in their phraseology, as drawn up. But the case finds that there was no difference in the sense.
It is holden that when arbitrators deliver to one of the parties a paper purporting to be their award, different from that which was delivered to the other party, the variance is fatal, and both are void. Coxe 435, Green vs. Lundy. But this must be a substantial variance. A mere immaterial variance in the description of the parties, or in some other unimportant respect, in no manner altering the sense, will not vitiate an award. 14 Johns. 368, Platt vs. Smith. The awards made in this case are precisely the same in substance, and in a legal point of view are but one award. Either
The award also allows the plaintiff costs, which is excepted to. There is some controversy in the decisions as to the authority of arbitrators, under arbitration bond, to award costs. The early English authorities hold that such power did not exist in arbitrators, unless specially committed to them by the terms of submission. 2 Pet. Ab. 253, and authorities cited. These authorities have been followed to some extent in this country. 8 Mass. R. 399, Peters vs. Pierce; 6 Conn. 696, Alling vs. Munson. At the same time, referees appointed under a rule of court, both here and in England, have been holden to have jurisdiction on the subject of costs. 2 D. & E. 644, Roe vs. Doe; Willes 62, Candler vs. Fuller; 2 Mass. R. 164, Nelson vs. Andrews; 15 Pick. R. Bacon vs. Crandon.
In New-York and Pennsylvania the rule has been uniform, both as to submission by bond and by rule of court, that arbitrators may award costs. 14 Johns. 161, Strang vs. Ferguson; 16 Serg. & Rawle 135, Hewitt vs. Furman; and the same has been holden in this state, in 2 N. H. Rep. 179, Joy vs. Simpson; 5 N. H. Rep. 229, Brown vs. Mathes; and the question should be regarded as fully settled here in favor of such authority.
The exceptions taken are, therefore, overruled, and there must be
Judgment on the verdict for the plaintiff.
