20 N.H. 174 | Superior Court of New Hampshire | 1849
It was held, upon questions reserved at a former trial of this cause, that an award was imperfect and without effect which did not extend to all the matters specifically embraced in the submission, or which did not meet its requirement by being made in writing.
The reason of this rule was shown to be, that an award owes its force and validity to the agreement of the parties, and is not of course binding upon them unless it be made in the manner which the agreement has pointed out.
But, in general, a party may waive a condition for which he has stipulated, and that principle seems applicable to the present case. "Whatever advantages the parties might have contemplated in requiring the award to be made in writing, they were competent to waive that condition as to the whole or a part of the matters included in it.
The case finds that a division of the stock was awarded, except as to one beast; that the parties acquiesced in that division, so far as it was made by the arbitrators ; and as to the beast not included in the partition, made an arrangement between themselves; and, in short, excused the arbitrators from making an award in writing with respect to this branch of the controversy submitted to them.
It would be manifestly idle to require the arbitrators to award concerning matters expressly taken out of the submission, by the agreement and settlement of the parties, and contrary to the plainest justice to allow a party to take advantage of an omission which he had expressly authorized and sanctioned.
That the facts proved, and relied on as evidence of the waiver, were competent to establish that fact, we think
We are, therefore, of the opinion that the ruling of the judge, as to the admission of the evidence, was correct, and that there must be
Judgment on the verdict.
