20 N.Y. 184 | NY | 1859
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *186 Some of the points which have been urged on the part of the defendants might be worthy of a serious consideration, if they had not taken possession of the land in question for the purposes of their road, and continued in the occupation, so far as we know, to the present time. It was suggested on the argument that the company took possession as wrongdoers; that their continued occupation was but a continuance of the wrong; and on this ground that the question whether the award ought to be specifically enforced must be determined wholly by other considerations. To this it must be answered that the facts are not so found in the case made for reviewing the trial. There is indeed no statement of the conclusions of fact found by the judge who tried the cause, and therefore nothing can be intended or presumed against the correctness of his final decision. On looking into the evidence it appears that shortly before the award was made, the plaintiffs forbid the workmen of the company from going on to the land until it was paid for; that this prohibition was complied with until after the award was published, when the company resumed their operations, and from that time continuously occupied the premises. A reasonable interpretation of this conduct is, that the defendants on their part intended and expected to perform the award by paying to the plaintiffs the sum therein specified on receiving a conveyance of the land. The inference which the judge derived from these circumstances is not stated, and the plaintiffs therefore, in support of the judgment, are entitled to the one which is most favorable to them. I think they have *187 a right now to say that the railroad company took and continued the possession of this land with a direct reference to the submission and award by which the price and damages were determined. That conclusion may have been, and probably was, the controlling one which influenced the course of the trial and the final decision.
Viewing the case from this point there was no error in the rulings at the trial, or in pronouncing the judgment. The defendants were not entitled to a nonsuit, as they claimed, on the ground that an incumbrance existed against the land at the time the deed was tendered to them. The title, it is true, was to be clear of incumbrance, and if the defendants had not themselves acted upon the award by taking possession of the premises, it may be that they could resist a specific performance on the ground that the condition precedent was not strictly performed on the part of the plaintiffs. Such a question need not be examined. The incumbrance was satisfied eight days after the deed was tendered, and although this was after the time when a clear title was to have been made, according to the terms of the submission, yet the defendants by their own conduct lost the right of insisting upon such a ground of defence. If they were not content with the title offered to them, they should have specified the objection and given up the possession of the land.
And a similar answer must be given to another objection prominently urged on the argument before us. The defendants offered to show that the arbitrators allowed to be proved, and took into consideration, one or more items not embraced in the submission, and which could not legally form any part of the sum to be paid to the plaintiffs as a compensation for their land. It appears that both parties attended and were heard before the arbitrators; and the fact is not found, nor is it pretended, that the defendants took and retained possession of the land in ignorance of the irregularities which they offered to prove. In such circumstances they cannot reject the award, even if it could be otherwise impeached for misconduct or excess of power. If they intended to deny the validity of the decision, they should have kept away from the premises or proceeded in some other *188 manner to acquire the title. They did neither of these things; and having taken and appropriated the land with no other right to it than such as they took under the submission and award, they are, on the plainest principles, estopped from interposing a defence of this nature.
I think the judgment should be affirmed.
JOHNSON, Ch. J., DENIO, ALLEN and GRAY, Js., concurred.
Dissenting Opinion
There was no special finding of facts by the judge before whom this cause was tried at special term, nor by the general term of the Supreme Court. The bill of exceptions contains some evidence tending to show that improper motives were entertained by one of the appraisers, and that he might have acted improperly in making the appraisal. The court below, having given judgment for the plaintiffs, must be presumed to have found that there was no improper conduct by the appraisers in making their award. This determination, being upon a question of fact, cannot be reviewed by this court. The same remark is applicable to the questions, whether the amount awarded to the plaintiffs by the appraisers was so disproportioned to the value of the land to be taken, and the damages occasioned to the plaintiffs by constructing and operating a railroad through their farm, as to prove that the award was fraudulently made by the appraisers, or so excessive that the court, in the exercise of its legal discretion, will not enforce a specific performance of the contract against the defendant.
The defendant, having taken possession of the land and continued such possession up to the trial of the cause, could not insist upon the failure of the plaintiffs to tender a deed conveying to it an unincumbered title within the time limited by the agreement. Such failure constituted no defence to the action. (Stevenson v. Maxwell, 2 Comst., 408.) A specific performance in a proper case will be decreed against the purchaser when the vendor is able to give a perfect title at the time of trial. (Brown v. Haff, 5 Paige, 235; More v.Smedburgh, 8 id., 600; S.C. upon appeal, 26 Wend., 238.) *189
The clause fixing the damages to be paid by the party in default does not constitute a defence to this action. The agreement to take the land and pay the sum awarded, is absolute. There is nothing in the agreement giving to the defendant an election to take the land or pay the damages, or showing an intention by the parties that the damages should be accepted by the party not in default in satisfaction of his rights under the agreement. The evident intention of the clause was to insure performance by the parties.
The only remaining question arises upon the exception to the ruling of the judge in excluding the evidence offered by the defendant upon the trial. The defendant proposed to prove that the appraisers received proof or representations from Gen. Viele (one of the plaintiffs) of expenses incurred by him in attending the Legislature to lobby against an amendment of the general railroad law which the defendant sought to get passed to enable it to perfect its titles, and that the arbitrators actually allowed some $80 on that account in their award, and allowed the further sum of $500 to indemnify the plaintiffs against the chance that at some future day they might lose the life of a son or child by the engine. The evidence was offered as an entire proposition. It is well settled that if any portion of the testimony so offered is inadmissible, it is not error to reject the proposition containing it, although a part thereof was competent. The question, then, is whether the defendant had the right to prove both facts embraced in the proposition. As to the $80 expended in lobbying, there can be no question. This had nothing whatever to do with the question submitted to the appraisers. It was submitted to them to determine the amount of compensation to be paid by the defendant to the plaintiffs for the land required for the road, and also the damages and costs sustained or to be sustained in consequence of locating and constructing the road. The idea that it was necessary for Viele to visit Albany and expend money in attending the sessions of the Legislature to prevent an amendment of the general railroad law in consequence of the location of the defendant's road through a farm in which *190 he was interested, is absurd. This is the only ground upon which it could be claimed that these expenses were embraced in the submission.
The allowance of $500 as an indemnity for the apprehended death of a child from the engine, I think was unauthorized by the submission. Under the submission the appraisers were to determine the value of the land to be conveyed, and the amount of the damage to the residue of the farm caused by the intersection of the said road. The inquiry as to the damage was, how much the farm was reduced in value thereby. In determining this, they had the right, and it was their duty, to take into consideration all the inconveniences and dangers of cultivating the farm caused by operating the railroad. But I think they had no right to take into the account any other injuries that the plaintiffs might sustain in operating the road. Should a child of the plaintiffs be killed by the engine through the negligence of the defendant, this allowance would constitute no defence. Should it occur through the negligence of the child or its guardian, then the plaintiffs are entitled to no compensation from the defendant. As I understand the submission, the appraisers were clothed with the same powers as commissioners appointed by the court to appraise damages sustained by the taking of land by railroad companies for the purposes of their road. In this case the parties agreed upon the appraisers, and the language used in defining their powers is substantially that of the statute relating to commissioners. It is true the award in this case required no confirmation by the court. The parties provided for the transfer of title by their agreement. They did not confer power upon the appraisers to award concerning injuries that might be received by the plaintiffs through the wrongful act of the defendant in operating their road, nor to compensate the plaintiffs for injuries sustained without its fault. A construction conferring such power is not warranted by the language, and I am satisfied was not the intention of the parties in making the submission. The validity of the appraisal or award in this case is to be determined by the rules governing the award of arbitrators. An award *191 will not be set aside for an error of judgment by the arbitrators, either of fact or law, provided they act in good faith. But when they exceed their jurisdiction, and award upon matters not embraced in the submission, that portion of the award is void. And where the award is entire, and the whole is affected by the excess of jurisdiction, the whole award is void. (Schermerhorn v. Hull, 13 John., 270; Bacon v. Wilber, 1 Cow., 117; Cox v. Jagger, 2 Cow., 638.) Here the award is for an entire sum, and the proposition of the defendant was to show that of the amount some $580 was on account of matters not submitted. The award, if this be true, is void. The defendant had an undoubted right to show that no valid award was made by the appraisers; and I think the facts affirmed, if proved, would show this.
The judgment should be reversed, and a new trial ordered.
SELDEN and STRONG, Js., also dissented.
Judgment affirmed.
