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Buck v. Wadsworth

1 Hill & Den. 321 Court N.Y. Sup. Ct. English

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p. 321
Buck vs. Wadsworth.

Headnote

Where arbitration bonds required the award to be in writing, ready for delivery to the parties on or before a given day, and the arbitrators made an award, and delivered it to the prevailing party; held, that the other party, not having waived his right to a counterpart, and none having been prepared for him, the award was a nullity.
In bonds of submission, where the concluding part of the condition is thus—“ so as the said award, &c. be made in writing, &c. and ready to be delivered to the parties on or before,” &c.—these words import a limitation upon the power conferred upon the arbitrators, the observance of which is essential to their .jurisdiction.
The only way in which an award under such bonds can be rendered binding, is by the arbitrators executing two parts, unless this is in some form expressly waived.
If one party tell the arbitrators they need make no counterpart, as he will not receive it, this will be deemed a waiver of his right.
An acceptance of a sworn copy of the award, in lieu of the original, is also a waiver.
Motion to set aside the report of a referee. The action was debt, on an award made under mutual bonds, dated 6th March, 1839. The condition of the bonds was in the usual form, and concluded thus-*-1' So as the said award, <fcc'. be made in writing, &c. and ready to be delivered to the said ;parties on or before the 1st day of June, 1839.” The arbitrators named were Humaston, Rhea, and Reeder. They made and signed an award without any counterpart, on the 23d March, 1839, and then separated, leaving it with Humaston to deliver, and appointing a day (March 26,) and place, when Humaston should deliver it; Wadsworth saying, he would send an agent to receive it. He did send Goff, who met Humaston at the day and place. The. plaintiff also met them at the same time and place. Humaston, as he testified before the referees, stated, that they should first find for themselves, that is, for their fees, and then hand the award to the plaintiff. Goff mentioned that he was requested to appear and receive the award and papers for Wadsworth, the defendant. Humaston replied, the award was for Buck. He then read the decision, and
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reached Goff the award or minutes, who wanted to write to Wadsworth and give him the information. Goff took the award, expressed no dissatisfaction in not receiving a copy, and finally handed it back, saying he had taken minutes or a copy of the award. The witness, H., thought, when Góff requested the award,' he wanted it to keep, supposing it. in favor of Wadsworth; but he (witness) did not think it necessary to deliver an award to the losing party.
This suit-was commenced in May, 1839; no award or counterpart having, as yet, been delivered to, or prepared for, the defendant Wadsworth. The referee having reported in favor of the plaintiff,'
Foster, for the defendant, now moved to set .aside the report.
M. T. Reynolds, contra.

The words of the bond made, it a condition, that the award should be ready for delivery on or before the first of June, to Wadsworth, as well las Buck. It was ready for delivery to the latter, but- not to the former. The arbitrators did not even suppose an award was necessary for Wadsworth, and they accordingly never signed a counterpart. Even if Goff had the power, he did nothing which can be construed into a waiver of the right to insist on the delivery of an award to his principal. The only method by which an award made under the condition of a bond, such as this, can be rendered binding, is by the arbitrators executing and delivering two parts, unless the party shall expressly discharge them of that necessity; as, by telling them they need make no counterpart, for he will not receive it; or, as in Sellick v. Addams, (15 John. R. 197,) accepting sworn copies, in lieu-of the original, without objection.[1] In short, nothing like a waiver exists in this caseand without that, it

(a) (a) See Perkins v. Wing, (10 John. R. 143.)

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is entirely settled that the award is a nullity, for want of its being ready within the terms of the condition. (Pratt v. Hackett, 6 John. R. 14.)

Motion granted.[2]

(b) (b) As to the effect upon the award, of an omission on the part of arbitrators to comply with the ita quod clause, or other condition in the submission, as it relates to the subject matter submitted, the time of making the award, the form thereof, and other particulars, see Cowen & Hill’s Notes to 1 Phil. Ev. p. 1027, et seq: and the cases there cited.