5 Blackf. 473 | Ind. | 1841
This was an action of debt against the Washington Hall Company, on an award for 1,037 dollars and 70 cents. There are six counts in the declaration. The first and some of the others aver, that there being certain matters in difference between the parties, relative to the compensation which was due from the defendants to the plaintiff for his erecting certain buildings and making certain repairs to the Washington Hall, in Indianapolis, in 1836 and 1837, and respecting the damages, if any, sustained by the defendants in consequence of the said buildings and repairs not having been finished in proper time, or in a workmanlike-manner, — those matters in difference were, on the 30th of May, 1837, submitted to arbitrators, &c.; that the arbitrators, on the 6th of June in the last-named year, made their award in favour of the plaintiff, &c.; whereby an action had accrued, &c. The other counts state that certain other matters in difference existed, &c. (without specifying them,) and that the same were, on the 30th of May, 1837, submitted to arbitration, &c.; that an award in favour of the plaintiff was afterwards made, &c. The second and fifth counts, instead of stating generally as the others do, that the agreement of submission was made by the plaintiff and defendants, aver that it was signed by the plaintiff, and by James BlaJce, pre
. The first plea is nil debent. The second, third, fourth, and sixth pleas, impeach 'the validity of the award. The fifth is nul tiel award. Replication to the five last-named pleas, that after the submission ’and award declared on, the plaintiff sued th'e defendants in assumpsit for the same' matters that are described in the agreement of submission mentioned in the declaration; that the defendants pleaded in bar to that 'action the award now sued on; and that the Court adjudged the award so pleaded to be final, and binding on the .parties, as appears by the record. Rejoinder to this replication, nul tiel record. Sur-rejoinder, that there is such record, &c.
The seventh' plea is a plea of payment; to which there is a replication in denial.
There is also an eighth plea, which is a plea of payment and set-off, charging the plaintiff with being indebted to the defendants, in the year 1837, in the sum of 2,000 dollars for money lent, in the same amount for money had and received, and in the same amount on an account stated. To this eighth plea the plaintiff replied, first, that he was not indebted in manner and form, &c.; secondly, that the matters claimed as a set-off in that plea were included in certain matters of difference between the parties, which, previously to the commencement of this suit, they had submitted to arbitration; that an award had thereupon been made, &c. Rejoinder to the last-named replication, that, the matters described in the eighth plea aré not the same which, by the submission and award mentioned in the replication, were submitted to, and awarded upon by, the arbitrators, &c. Sur-rejoinder, that the matters named in the eighth plea were included in the said submission; concluding to the country.
The issue triable by record was correctly decided by the Court in favour of the plaintiff.
The following are the proceedings on the trial of the issues to the country:—
The defendants introduced in evidence five receipts. Four of them are signed by A. JF. Russell, and acknowledge his receipt from the defendants of several sums of money on account of the Washington Hall buildings, amounting in all to 1,453 dollars and 45 cents, to be returned to the defendants if required. The fifth is signed by the plaintiff, and acknowledges his receipt of 1,453 dollars and 45 cents from Russell, on account of the defendants. These receipts are all dated five or six months before the agreement of submission described in the declaration. The defendants proved that the receipts just mentioned were before the arbitrators who made the award; that the plaintiff expressed his desire to the arbitrators that they would allow to the defendants the amount of his receipt given to Russell; but that the defendants voluntarily withdrew the receipts from the consideration of the arbitrators, with a view of recovering from Russell the amount of his receipts, whom they considered liable • to them for the same; and that the receipts being thus withdrawn by the. defendants, were not acted upon by the arbitrators. The defendants also proved, that the plaintiff was the undertaker for erecting the buildings and making the repairs for which he claimed an allowance by the arbitrators, and that Russell was one of his sureties in the contact; that the defendants, at one time, refused to advance to the plaintiff more money on the contract, in consequence of his ne
There was also proof that at the time of this trial before the arbitrators, there was a suit pending in the Circuit Court in favour of the defendants’ agent against the plaintiff, founded on the said receipts.
This is the substance of the evidence given to the jury by the parties.
The Court refused to give several instructions to the jury asked for by the plaintiff, but instructed them that if the defendants, when before the arbitrators, refused to receive a credit offered to them by' the plaintiff for their claim evidenced by the receipts of Russell and the plaintiff, under a misapprehension of their rights, they were not bound by the refusal, otherwise they were. The Court gave several instructions to the jury, on motion of the defendants, which it is not necessary to notice. The jury gave a verdict for the defendants. The plaintiff moved for a new trial which was refused; and judgment was rendered on the verdict.
The demurrers to the second and fifth counts were cor-' rectly sustained. The act incorporating the defendants requires that instruments, like the unsealed agreement of submission described in these counts, should be signed by the president of the company, and attested by the secretary. It must be understood from these counts, that said agreement described in them has'not the attestation of the secretary; and they are therefore defective.
There are two grounds upon which the plaintiff was entitled to a new trial.
The first is, that the instruction given to the jury and which we have set out, is erroneous. The instruction was not only foreign to the issues relative to the set-off, but it was calculated to mislead the jury as to the law. The law is not, as that instruction implies it is, that the set-off, though within the agreement of submission, was valid, if the defend-
The other ground upon which a new trial should have been granted to- the plaintiff is, that the evidence was not
The second issue is on the plea of payment. The defendants made no attempt to prove that plea.
The third and fourth issues'arise from the replications to the plea of payment and set-off. If either of those issues ought to have been found for the plaintiff, the jury should not have allowed the set-off. The first of said issues raises the question, whether the payment of 1,453 dollars and 45 cents pleaded as a set-off, and which the receipts of Russell and the plaintiff were introduced to prove, was ever chargeable by the defendants to the plaintiff? That question we shall not now decide. Admitting for argument’s sake, that the payment was so chargeable, the plaintiff was still" entitled to a verdict on the issue on the second replication to the plea of payment and set-off. That issue presents the question, whe
We are therefore of opinion, that the plaintiff was entitled to a new trial; first, because of the erroneous instruction to the jury; and, secondly, because the plaintiff proved his case, and showed that the set-off, if it was ever chargeable to him, was embraced in the agreement to submit, and was consequently inadmissible in this suit.
The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.