74 Ky. 619 | Ky. Ct. App. | 1876
delivered the opinion of the court.
Chapter 3 of the General Statutes provides that “all controversies which might be the subject of a suit or action may be submitted to the decision of one or more arbitrators, or two and their umpire.”
Section 2 of the same chapter provides that the submission may be in the mode specified by the Civil Code, or it may be in writing, etc.
Section 3 provides the form of the covenant the parties may enter into for the purpose of referring the questions at issue to arbitration.
The only material difference between the General Statutes and the Revised Statutes on the subject of arbitration and awards is that under the Revised Statutes the parties were required to make the submission by an order or rule of court. If no action was pending in court the submission had to be made by a written agreement filed and noted on the record, or by an entry on the record stating what matters were submitted.
Section 499 of the Civil Code also requires that the submission, whether an action is pending or not, may be by rule of any court having jurisdiction of the subject-matter.
Under the General Statutes the submission may be as provided by section 499 of the Civil Code, or it may be in writing, the agreement stating the matters submitted and who are to be the arbitrators.
This agreement in writing is not now required to be noted of record or filed in any court. The arbitrators may proceed to act as required by section 4 of chapter 3, and when their award is made in writing, as provided by section 5 of the same chapter, either party may maintain an action against the other for failing to perform the award. The arbitrators have also
It was held by the court, in the case of Logsdon v. Roberts’s executors (8 Monroe, 256), that the act of 1798 concerning awards did not alter the common-law rule on the subject.
A like decision was made under the Revised Statutes in the case of Overly’s executors v. Overly’s devisees (1 Met. 119), and in the still later case of Royse, administrator v. McCall (5 Bush, 697).
The court below acted properly in refusing to instruct the jury to disregard the award made by the arbitrators under the parol submission of the parties.
Perceiving no error to the prejudice of appellant, the judgment is affirmed.