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Butler v. Mayor of New-York

1 Hill & Den. 489 Court N.Y. Sup. Ct. English

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p. 489
Butler vs. The Mayor, &c. of New-York.

Headnote

A building contract provided, that in case of disagreement between the parties in respect to certain extra work, it should be appraised by two persons to be selected by the parties, and, in case of disagreement between the appraisers, then the appraisal to he made by an umpire: Held, that an award of the umpire pursuant to this arrangement was conclusive, and precluded a recovery for any thing beyond the amount fixed by it.
Due notice to the parties of the times and places appointed for the meeting of arbitrators, is to be presumed; and the party seeking to' impeach the award for the want of such notice, must prove that it was not given.
Though one of the arbitrators appointed by the parties signed and sealed the award with the umpire; yet held, that it was to be regarded as the sole award of the latter, and the addition of the other signature might be treated as surplusage.
Arbitrators authorized to choose an umpire, are not bound to defer the choice until a disagreement between them; but may make it before proceeding to act upon the matters submitted.
The award in this case referring to the original contract; held, that both might be read as one paper, for the purpose of identifying the subject matter of the umpire’s decision.
Where an award is ambiguous, the subject matter to which it relates may be identified by parol evidence.
Technical precision and certainty are never necessary in an award. If it be expressed so that plain men, acquainted with the subject, can understand it, that is sufficient, however short and eliptical the phraseology.
Where arbitrators were authorized to determine the increase or diminution in the cost of buildings by reason of extra work, which the contractor was bound to complete; held, that an award finding the contractor entitled to “ receive $8385,29 for the increased cost of said buildings, after he shall have filled up,” • &c. (specifying a part of the extra work not then completed,) was not rendered totally invalid by reason of the latter clause.
If, in respect to that clause, the umpire exceeded his jurisdiction, the party by whom the money was to be paid had a right to insist that it should be regarded as mere surplusage, leaving the award to stand for the sum named as due immediately.
Semble, that for the purpose of sustaining the award, the court would intend that the filling up, &c. was part of the extra work provided for by the contract; in which case, the finishing of it might properly be directed, or made a condition.
An award importing on its face a regular adjudication pursuant to the submission, cannot be impeached, when used collaterally, by oral evidence that the arbitrator either exceeded his jurisdiction, or omitted to decide on all the matters submitted.
Semble, that in a cqurt of law, an award good by intendment is not open to
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collateral impeachment, on the ground that the arbitrators transcended or fell short of the limits of the submission; for the.intendment being presumptio juris et de jure, can no more be 'contradicted than the legal effect of any other written instrument.
Otherwise, since the case of Elmendorf v. Harris, ( 23 Wend. 628 ,) in respect to want of notice of hearing to the party.
If an excess of jurisdiction appear on the face of an award, it is then void pm tanto, or in toto, according as the bad matter is, or is not separable from the good; and a separation should always be made, if possible.
On a motion to set aside an award, it is examinable more freely than when used as the foundation of an- action or defence.
Quere, whether the judgment of a domestic court of general jurisdiction can be impeached collaterally, by shewing want of notice to the defendant; the record importing full jurisdiction ?
Error from the superior court of the city of New-York. The' action in the court below was debt, brought by Butler to recover a balance due on a building contract. The contract was dated May 11th, 1835, and was under seal; Butler thereby covenanting to build “ The Halls of Justice” for the defendants, according to a specified plan—the defendants to pay by instalments. It provided for a superintendent or architect to direct the work, and contained this clause: “ In case any alteration in the form, proportions or construction of the said building or work, as described in the said specifications and drawings, should, in the progress of the said building or work, be determined on by the said superintendent or architect, by which the cost of the said building may be diminished or increased, the amount of such diminution or increase shall, in case the said party of the first part and the superintendent or architect do not mutually agree upon the same, be determined by impartial appraisers to be chosen, one by the said party of the first part, and the other by the said superintendent or architect, or by an umpire to be appointed by such appraisers to decide between them in case of their disagreement.”
The specifications, &c. having been departed from, it became necessary to act under the above clause of the contract. Butler and the architect not being able to agree, however, an instrument was made and signed by them, re
p. 491
citing the said clause, and certifying that Butler had nominated T. Thomas* and the architect, P. J. Bogert, to make such appraisal, or appoint an umpire, dec.
The appraisers, before ascertaining whether they could agree or not, and, indeed, before acting under their appointment, selected A. Lawrence as an umpire, who, together with said Bogert, signed the following award: “ New-York, April 3d, 1838. We the undersigned, appraisers chosen to examine and value the extras and omissions caused by reason of alterations in the form and construction of the buildings called the Halls of Justice, as provided for in the contract for said buildings between Horace Butler and the mayor, &c. dated the 11th May, 1835, having carefully examined the said extras and omissions, do hereby determine, that the said Horace Butler is entitled ■ to receive from the mayor, dec. the sum of $2385,29 for the increased cost of said buildings, after he shall have filled up the outside paved ways. Whereunto we have set our hands and seals .on the day and date first above written.”
Evidence was given tending to show that the filling up of the “outside paved ways” mentioned in the award, was a part of the extra work in question ; that it had not been completed at the time of the appraisal; and that the labor and materials necessary ■ for that purpose would cost about $100.
On the defendants offering the award in evidence, the plaintiff raised the following objections: 1. That the award was not the act of the umpire, but of the umpire and another jointly ; it being signed by him and one of the appraisers. 2. That the appraisers had no power to appoint an umpire until after a disagreement between them. 3. That the award did not purport to be an appraisement, within the terms of the contract and submission, viz. an appraisal or ascertainment of the diminution or increase of costs, &c. during the progress of said building or work; but purported to be an award upon a general submission of differences between the parties. 4. That whether the
p. 492
one or the other, it was irregular and void by reason of the words—“ after the said Butler shall have filled up the outside paved ways”—as that clause showed the award was not final in respect to the matters submitted. These objections were severally overruled; and the award was read in evidence. The plaintiff next insisted that the award could not be effectual for any purpose, unless the defendants proved that he had notice of the meeting of the appraisers, &c. The court, however, decided otherwise; holding that such proof on the part of the defendants was unnecessary.
The plaintiff then offered proof of the actual value of his extra work, &c.; but the court rejected the evidence. Offers were also made by him to show that the umpire had made improper allowances to the defendants—that he had gone beyond the cost of alterations, and had credited the defendants with damages for defects in the plaintiff’s work on parts ■ of the building other and distinct from the alterations. The court, however, held the award conclusive that no matters had been submitted and passed upon beyond the umpire’s jurisdiction. In short-, they received and acted upon the award as a complete bar to any recovery on the original indebtedness, and allowed the plaintiff to recover no mote than the amount of the award. A verdict and judgment was rendered in his favor accordingly; and he having excepted to all the above decisions, brought error to reverse the judgment.
C. O'Conner, for plaintiff in error.
G. F. Tallman, for defendants in error.

Clearly, it was not necessary to show notice to Butler, by proof aliunde, of the times and places when the arbitrators met. Due notice must be presumed, till Butler proved the contrary; which he did not do. - • . ,

It .is no objection to the award, that Bogert signed and

p. 493
sealed it with the umpire. (Caldw. on Arb. 42, 3. Soulsby v. Hodgson, 3 Burr. 1474. Beck v. Sargent, 4 Taunt. 232. That does not negative its being the sole award of the umpire. The signature and seal of Bogert indicates his assent, but that is mere surplusage, and may be rejected as such. ■

The choice of Lawrence as umpire was just as well before disagreement as after. Indeed, this is said to be the better time for appointing an umpire. (Kyd on Awards, 87.)

No one can read the award, in connection with the articles to which it refers, without understanding that the subject matter was the alterations, &c. mentioned as matter of arbitration by the articles. These being expressly referred to, must be read as if recited at length in the award; and nothing can be found there beside those alterations to which it could, with any propriety, be applied. • The umpire, in eifect, declared accordingly that he had examined the alterations, and fixed the increased cost. The meaning and application of the added words as to the paved ways, were shown by parol, as they might be. Indeed, Butler did not pretend there was any difficulty in understanding and fulfilling the terms on which the sum awarded was declared to be absolutely due. Technical precision and certainty are never necessary in an award. If it be expressed in such language that plain men acquainted with the subject matter can understand it, that is enough, no matter how short and eliptical. (Matson v. Trower, Ry. & Mood. N. P. Cas. 17. Hays v. Hays, 23 Wendell, 363, 366, 7.)

The award was in substance that the cost of the alterations, <fcc. were $ 2385,29, less the expense of Butler’s filling up the outside paved ways. Here was a step to be taken by Butler in order to make the sum payable, and, if you please, in order to liquidate the amount. Yet it is an assessment and declaration of the cost of alteration, certain within the meaning of the law both as to amount and terms of payment, because both could be made certain. Several

p. 494
cases are cited in Watson on Arb. and Award, 122, 3, 4, of much greater apparent uncertainty so long as-the courts stopped at the face of the award. But, on looking beyond it, and finding the amount ascertainable by matter aliunde, it was agreed that the awards could be sustained as sufficiently final and certain. A question of certainty on an award quite as vague as the present, if not more so, has been of late very fully considered by the K. B. and on error to the exchequer chamber,, in Cargey v. Aitcheson, (3 Dowl. & Ryl. 433, 2 Barn. & Cress. 170, S. C.; 2 Bing. 199, and M’Lel. R. 367, S. C. on error ;) and the award sustained. At any rate, if the condition of filling up the ways was a nullity on account of the umpire having exceeded his authority, or for uncertainty, or any other reason, it may, according to the case last cited, be rejected as mere surplusage, and then the award will stand absolutely for the sum declared to be due in money, and be payable presently.-

So far, I think, the award may, without difficulty, be supported ; and if there be nothing more in the defence, it was a bar to any claim for alterations exceeding in amount the sum awarded. If it were necessary, we must intend that the filling up of" the paved way was a duty which some how related to the alterations mentioned in the original contract.

The only remaining question arises on the offer to show an excess of jurisdiction in subject matter; viz. that the umpire, though tied up by a special submission to assessing the value of the alterations, went beyond that- and assessed damages in favor of the defendants for defects in the body of the work and struck a balance. This, I admit, was beyond his vocation; but I have not been able to see that he did so, by any thing in his award. I have mentioned our duty of intendment as to the paved ways. If they related to the alteration, the finishing might properly be directed, or made a condition. Such intendment is here more than a common presumption. When in a court of law it is said, an award is good by intendment, it. means that such is the legal effect of the- instrument. The intendment is there

p. 495
fore presumptio juris et de jure, and can no more be contradicted than the legal effect of any other written instrument. If there appear to be an excess of power on the •face of the award, that is one thing-. The award is then either void pro tanto, or in toto, accordingly as the bad matter may be separable from the good or not. If it be inseparable, the whole must fall together, though you always make a separation if possible. (Nichols v. The Rensselaer Co. Mutual Ins. Co., 22 Wend. 125 , 129.) The award is in terms or in effect a declaration by the parties themselves through their agents, that the proper matters have been considered and examined ; and, as a general rule, nothing thus declared can be contradicted on trial in a court of law. I say as a general rule; and I can hardly feel a doubt on the decisions in this state, that whether the submission be general or special, you cannot by extrinsic evidence show either an omission to award on every branch of the subject, an award on a matter not submitted, or, till the late decision by the court for the correction of errors in Elmendorf v. Harris, ( 23 Wend. 628 ,) prove the want of notice of hearing to the party sought to be charged. This is, I apprehend, even now the common law of England, (Braddick v. Thompson, 8 East, 344;) for in Elmendorf v. Harris, no British case was found to the contrary which proceeded on the common law. A case, on the Scotch law, decided by the house of lords in England, was, indeed cited to the contrary; but the law of Scotland is based on the civil law. No cases were cited, on the argument of this cause, wherein it was ever holden that in a suit at law you may show by parol an excess of jurisdiction in the subject matter. I confine the rule to a regular suit, because on motions to set aside awards, intended for enforcement by a rule of court, or to pass summarily- into a judgment under the revised statutes, they are examinable more freely and to a. certain extent on the rules which prevail in chancery—where alone, I apprehend, could Butler have the present award corrected in respect to the admission or exclusion of improper items, whether within or without the power of the umpire. Such
p. 496
was admitted to be the rule, both of England and this state, by Wilde, J. in Bean v. Farnam, ( 6 Pick. 269 , 273, 4,) and it was departed from in that case only because in Massachusetts, the subject could not be reached by the chancery power. You may also, perhaps, impeach an award by averring or proving matter aliunde which shews it utterly indefinite or uncertain in any respect whereof non-performance is predicated. (Cargey v. Aitcheson, before cited.) But that goes on the doctrine of oral evidence touching ambiguity. I know, that when Cargey v. Aitcheson came to be considered on error, it was surmised by Best, C. J. who delivered the opinion, that you may also aver the arbitrators did not act upon every thing contained in a special submission. But this was mere surmise; and he admits that a contrary rule was laid down by Lord Ellenborough in Randall v. Randall, (7 East, 81, 3,) even on a motion for attachment. (1 M’Lel. 372. 2 Bing. 199.)

Jurisdictional intendments in support of an award, are at least as strong as they are in favor of a judgment rendered by a domestic court of general jurisdiction. It is often' said, that every intendment shall be made to support the decision of arbitrators, it being made by judges of the parties’ own choosing. And it would certainly be a singular objection against a record, in an action on a judgment, or in answer to it when pleaded in bar, that the judge at nisi prius received in evidence, and allowed the jury to assess damages upon, some matter without the jurisdiction of the court—some matter of trespass, for instance, in an action of assumpsit, or some matter of imperfect obligation, over which he had no jurisdiction in any form of action'—or that any thing belonging to the case was improperly excluded. Even that the party has had no notice, would be an objection, never yet, I apprehend, allowed in such case, -against the inference arising on the record, though I admit, there are dicta which countenance its reception.

On the whole I am of opinion that the judgment of the supe- ' rior court should be affirmed.

Judgment affirmed.

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