Perkins v. Wing — 10 Johns. 143

Majority

p. 145

Perkins and Wife against Wing and another.

NEWYORK,

May, 1813.

Headnote

The eon* dition to & bond of sub” mission to ar* bitrators was,, that the party should perform the award of the arbitrators, or a major part of them, so as the award be made in writing unde? their hands ^dy&to be delivered to the parties in difference,, them" requir ■ the same, on or before the 1st Sep tember.

The arbitrators, on the 25th Jlugust, made an award in writing, under their hands and seals, which was produced and twice read over to the parties, who appeared to be satisfied; and one of the par-lies paid 63 dollars, being the fees of the arbitrators and part of the sum awarded to be paid, and did not then demand a duplicate or copy of the award; but afterwards, on the 1st September, made a demand of the award, or a copy, from several of the arbitrators, which was refused.

In an action on the bond, no award was pleaded, and it was held that the fact of a demand and refusal of the award could not be given in evidence under the issue on that plea; but should have been specially pleaded; and that the conduct of the defendants at the time of the publication of the award, was a waiver of a mere formal delivery of the award, and concluded him from alleging, afterwards, that it was not delivered according to the condition; and that the evidence of part performance was admissible to show such acquiescence. Where an award is regular, on the face of it, it cannot be inquired into or impeached, except for the misbehaviour or corrupt conduct' of the arbitrators.

THIS was an action of debt on a bond, dated the 2d August, 1810, conditioned to perform the award of arbitrators. The defendants pleaded, 1. Nonest factum; 2. Craving oyer of the bond and condition which were set forth, and recited, that Dorcas Rider, now the wife of the plaintiff, had been delivered of a bastard child, and had alleged M. W., one of the defendants, to be the father; that he had promised her marriage, and that she had sued him for a breach of such promise, which was then pending, and for putting an end to the said action, and all controversies, See. she and the said M. W. agreed to submit the same to the award of seven arbitrators, or a major part of them; and that the . * parties were to attend, and the arbitrators meet, on the 23d August, 1810, at, &c. and that the award should be made and furnished by the 1st September, Src. and that the defendant M. W. in case *

p. 146

damages should be awarded, was to pay all costs, &c. atid thi$ other defendant be his security; the condition was, that the said W' should perform the award of the arbitrators, or a major part of them, so as the award be in writing under the hands and seals of the arbitrators, or a major part of them, and ready to be delivered to the parties in difference, or any of them requiring the same, on or before the 1st day of September then next, &c. The plea then stated that there was no award; 3. The defendant gave notice that he should prove at the trial, that the arbitrators, or a major part of them, did not make an award, &c. according to the condition of the bond, though they were expressly requested to do so,, by the defendants, on the 25th August, and on the 1st September> 1810, but that in a pretended award delivered by the arbitrators to the said Dorcas only, they included 200 dollars damages,which they supposed the father of the said Dorcas had sustained, by loss of her service, &c.

The plaintiff replied, setting forth an award made by the arbitrators on the 25th August, in writing, under their hands and seals, &c. by which they awarded and ordered all actions, &c. to cease, and that the said M. W. should pay all the costs, being 151 dollars and 3 cents, and should also pay to the said Dorcas, within three months, the sum of 800 dollars; on the payment of which mutual releases were to be executed, &c.; and that the said M. W. on the 25th August, paid 63 dollars in part; but had not paid the said sum so awarded to be paid by him, See.

The defendants rejoined no such award, and issue was joined thereon.

At the trial, the plaintiff produced and proved the bond and award, which was signed and sealed by all the arbitrators, and dated the 25th August, as set forth in the replication; that the award was twice read to the parties, all of whom were present on the 25th August. One award only was executed, and no award or copy was then asked for or required by the defendants. The defendants and all the parties appeared satisfied. The defendants, at the time, paid 63 dollars, part of the sum included in the award for costs, being for the fees of the arbitrators, and for which they gave a receipt.

The defendants proved that on the 1st of September, they called on several of the arbitrators, and requested the aurard in writing, pursuant to the submission, or a copy thereof; but could obtain neither. It appeared that when the award was made on the 25th

p. 147

August, the defendants asked some explanations relative to the costs, and it was again read over and explained to them by the arbitrators, after which they appeared satisfied. It was proved also that J. Wing, one of the defendants, and father of the other defendant, said, at the time, that he would make provision for paying the award.

The defendants offered to prove that the arbitrators, in making up their award, included 200 dollars for damages sustained by the. father of Dorcas Rider, for the loss of her service, &c,; but this evidence was objected to by the plaintiff, and overruled by the judge; who charged the jury, that the award was made pursuant to the submission, and the jury, under his direction, found a verdict for the plaintiffs for 1,007 dollars and If cents.

A motion was made to set aside the verdict; 1, Because the judge admitted improper evidence and rejected proper evidence; 2. For the misdirection of the judge; 3. Because the verdict was against evidence.

Sherwood, for the defendants,

contended, that it was competent to the defendants to show by parol proof, that the arbitrators had exceeded their powers, in awarding damages for the father’s loss of service; though he conceded that parol evidence was inadmissible where the arbitrators did not exceed their powers.^[4]

[Spencer, J.

But must not the excess of the authority appear on the face of the award itself?]

It is said by Lord Coke, in Baspole’s Case,^[5] that it shall be intended, until the contrary be shown and alleged by the other party, that the arbitrator made an award of all that was referred to him.

Again, the judge improperly admitted evidence of a payment of 63 dollars, in order to show an affirmance of the award, or a waiver of a copy of it, by the defendants, But this was a mere payment of the arbitration fees ; and was no evidence as to the due delivery of the award.^[3]

J. Tullmudge, jun. and Oakley, contra.

In all the cases cited, the excess of power, or ambiguity to be explained, arose on the face of the award itself. This court have uniformly refused to interfere in regard to awards, unless the submission has been made a rule of court; and not then, unless there is some irregularity on the face of it, or there has been some misconduct or corruption of the arbitrators. An award, in every other case, is cor

p. 148

sidered as equivalent to a judgment, and conclusive on the parties.^[4]

As to the objection that the award was not delivered; it was not necessary that it should be actually delivered to the parties. The condition of the bond is, that the arbitrators shall make an award, under their hands and seals, ready to be delivered.^[5] It is suffv c*en< that the award was so made and read to the parties. The issue is no award; and it is enough'to show an award executed^ and ready to be delivered.

The demand of the award by the defendants was not made of ^Tbrators when assembled together, nor separately, but fiw some of them only.

Muggles, in reply, said, that the arbitrators are. not strictly judges. They act only under an authority given to them by the .parties; and no act done by them, without such authority, can he binding on the parties. All the cases cited show what matter was • submitted. They do.not apply to a case where the arbitrators have undertaken to decide on a matter not submitted to them.

delivered the opinion of the court. If the award had not been delivered upon request, as the defendants contend, they should have pleaded specially such a request and refusal. The objection cannot be raised under the plea of no award. This rule has been declared and settled, repeatedly. (Rowsby v. Manning, 3 Mod. 331. Markes v. Marryott, 1 Lutw. 524. Oates v. Bromhill, 6. Mod. 176.) The form of a plea, in such a case, is stated in Wilson v. Wilson, as reported in note 5. in 1 Saund. 327. b. And if the fact of a demand and refusal to deliver the award had been regularly in issue, the evidence was sufficient to show that the defendants had admitted a delivery, or Waived the necessity of any. The award was, on the 25th of August, duly executed and produced to the parties, and it was twice read over by the arbitrators to the defendants, and they appeared to be. satisfied with it, and promised to perform it, and did, in fact, make a part performance, by paying 63 dollars, which was part of the, sum awarded to be paid, and they did not require a copy of the. award, or a duplicate original, and the arbitrators then finally separated. This, was the consummation of the business;. The defendants were concluded from alleging afterwards that they had not the' award delivered according to the condition of

p. 149

%fte bond. ’They were bound to speak then, at the time of the publication, and when the arbitrators were on the point of con-eluding and dispersing, if they required any further notice, publicatien, or delivery. No circumstances could be stronger from which to infer an acquiescence in that mode of delivery, and a waiver of the necessity of any delivery more formal. Evidence of part payment, at that time, was properly introduced to show the acquiescence of the defendants in the production and reading of the award, as amounting to a delivery of it, and as being all the delivery required.

The only question that touches the merits of this case is that arising on the rejection of evidence, that the arbitrators included in the award óf damages the injury which the father of Dorcas had sustained, by the act of the defendant in debauching his daughter, and violating the promise of marriage. Nothing of this appears upon the face of the award) and to admit the evidence would have been opening the controversy, and re-examining the merits of the award. This cannot be done;. and no rule of law has been more frequently and uniformly declared than that an award, regular on the face of it, cannot be impeached but by showing misbehaviour, or some partial or corrupt conduct in the arbitrators. To inquire into the reasons and considerations upon which the arbitrators .computed the amount of damages which the daughter had sustained) would be trying the controversy over again, and would be forming a dangerous precedent; It would render an award less final than the verdict of a. jury in a case of tort. No improper conduct in the arbitrators, and no illegal evidence was alleged to have occurred. It is only said that the arbitrators, in making up their award, increased the sum in consideration of the injury which the father received by the wrong done to his daughter; It is very possible that the arbitrators, in this case, as juries have frequently done in like cases, did consider the disgrace which the defendant had brought not only upon Dorcas, but upon her family, and especially her parents, and that they allowed a very considerable increase of damages by reason of this disgrace and injury. But this inquiry cannot be made in a suit upon the award. The principle is too well settled that “ the court will not enter at all into the merits of the matters referred to arbitration ; but only take into consideration such legal objections as appear upon the face of the award, and such objections as go to the misbehaviour tif the arbitrators-” (Lucas v. Wilson, 2 Burr, 701,

p. 150

3 Atk. 529. 644. Newland v. Douglass, 2 Johns. Rep. 62 . Barlon v. Todd, 3 Johns. Rep. 367 .)

The motion to set aside the verdict is denied.

Motion denied.