Smith v. Van Nostrand — 5 Hill & Den. 419

Majority

p. 419

Smith vs. Van Nostrand and others.

Headnote

If an agent enter into a submission to arbitration in his own name, he will be per. sonally bound to perform the award. Per Nelson, Ch. J.

So of a submission by a person on behalf of himself and others, but without their authority.1

Where a bond of submission was entered into by A. and others (the widow and heirs of B.) of the one part, and C. of the other part, the former covenanting that certain infant co-heirs should abide by the award, and the arbitrators awarded that C. should pay the other parties a specified sum of money; held, that though the submission was unauthorized in respect to the infants, the award was binding as between the parties.

Held further, that C. could not defeat a recovery on the award by showing that the only demands submitted to the arbitrators were accounts due to B. in his life time, that no letters of administration had been granted upon his estate, and that there was an adult heir of B. who did not join in the submission.

Error to the Seneca O. P., where the defendants in error sued Smith in debt on an award of arbitrators. The submission was by bond executed by the plaintiffs below (who were described in it as the widow and heirs of Isaac Van Nostrand deceased,) of the first part, and the defendant below of the second part. Following the condition of the bond, which was in the usual form, was a covenant in these words: “ And the said parties of the first part do hereby agree that, ivhereas there are infant heirs of the said Isaac Van Nostrand deceased who are not bound by .this bond, they the said minor heirs will abide by the award made in the premises. And the said parties of the first part do hereby bind themselves &c. to keep the said Smith [the plaintiff in error] harmless, and indemnify him against all damage which he may sustain in consequence of the non-conformity of the said minor heirs to the said award.” The arbitrators awarded that Smith should pay to the plaintiffs below the sum of $136,68.

On the trial, the defendant below offered to prove that ihe only demands submitted to the arbitrators on the part of the plaintiffs, consisted of accounts &c. due to Isaac Van Nostrand

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deceased in his life time, and that no letters of administration, had yet been granted upon his estate. The defendant also offered to prove that there were infant heirs and one adult heir of Isaac Tan Nostrand deceased, who were not parties to the submission. The court refused to receive the evidence, and the defendant’s counsel excepted. The jury rendered a verdict in favor of the plaintiffs, and, after judgment, the defendant sued out a writ of error.

A. Gibbs, for the plaintiff in error.

D. Wright, for the defendants in error.

It is well settled that an agent entering into a submission to arbitration in his own name, is personally bound to perform the award. ( Watson On Arb. 50, 1.) Where a parson on the one hand, and some of his parishioners on the other, in behalf of themselves and the rest of the inhabitants of the parish, but without their authority, submitted a dispute to arbitration by bond, it was adjudged that the parishioners submitting were answerable for a breach of the award by any of the others. (Id.) It has also been decided that one may submit in behalf of an infant, and thus make himself liable to perform the award. (Id. 42.) Hence, though the submission in this case was not binding upon the infants, nor upon the adult heir who was not a party to it, yet it was valid and obligatory upon all who were parties thereto.

If the award had been made in favor of the defendant below, he could have enforced performance against the plaintiffs, as effectually as if all parties in interest had united in. the bond. (Strangford v. Green, 2 Mod. 228; Comyn’s Dig., tit. Arbitrament, (D. 2.); Bac. Abr., tit. Arbitrament and Award,(C).)

As to the offer to prove that the demands in controversy belonged to the estate of I. Tan Nostrand deceased, and that the plaintiffs had not taken out letters of administration, it is a suffi

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dent answer that their interest in and title to the claims submitted were questions before the arbitrators, which were passed upon by them, and, cannot be here re-judged.

Judgment affirmed,