Humphreys v. Gardner — 11 Johns. 61

Majority

p. 61

Humphreys against Gardner.

ALBANY,

Jan. 1814.

Headnote

R- let a house year, who bemfe3 poLes-a'°oSe b^tweeu R and G as them had a theorem,CaJd *ey a=l'eed=iB the presence of H,,and with tion/to^suhl tiontotiiedc" cis™“ of t\ bitratóí-s, and time,take pos* session of the premises.The terhearh'gthe R^ndG^de^“¡dt,lat Hrent to^ok G^allwtice buM^did*™’ appear that had Lenglen £eid that'»5 w?s bound to take notice of the award, at being privy to *®,submissi.on t0 jt, and enpo”setsion°flof atetheeDtimes _wi,tb knowledge of the submission 0f cúdming^'thc rent"

THIS was an action of replevin, which had been brought before this court, by a writ of error, from the court of common pleas of Orange county, the judgment of which court was reversed and a venire dc novo awarded, returnable at the Orange circuit, (see 10 Johns. Rep. 53 .) where it was tried the 14th of September, 1813.

The declaration was in replevin for household goods, See. There was an avonry for rent due the defendant, and that the plain- ° ' r tiff for one year, ending the 1st of May, 1811, and from thence until, Sec. occupied the house in which, &c. as tenant of the defendant, under a demise, for the yearly rent of 100 dollars, &c. and because one year’s rent was due, &c. he, the defendant, well avows the talcing, &c. The plaintiff pleaded that he did not hold, &c. as tenant of the defendant, Sec. on which issue was ioined. 0

At the trial, T. E. Colden testified that he was present at a conversation between the plaintiff and defendant and William Ross, Esq. on the 1st of May, 1810, in which it appeared that Ross had let a house to Humphreys for a year, and who was then about to enter and take possession of it, when Gardner, who claimed a right to let the house, forbade him; that it was then agreed between Ross and Gardner, in the presence of Humphreys, to submit the question, to which of them the rent should be paid, to the decision of J. Fisk and J. Storey, Esquires, as arbitrators, and that, in the mean time, Humphreys should enter into the house, to which agreement, he, Colden, was called as a witness, and v 7 that Humphreys took possession of the house, Sec.

Storey testified that Gardner informed him that Ross and he had agreed to submit to him and Fisk to whom the rent should be paid; and the witness understood the same from Ross, who requested him to act as an arbitrator, and he thought, also, that Humphreys spoke to him and wished the question decided; that the witness and Fisk met as arbitrators, and Gardner and Ross ap r peared before them and stated their respective cases, and that, after hearing the parties, the arbitrators awarded that Humphreys should pay the rent to Gardner, and the witness soon afterwards

p. 62

informed Ross of the decision, who said the arbitrators had mistaken the question, &c,

Fisk, who was also a witness, testified substantially to the same facts, and that he informed Ross and Gardner of the decision of the arbitrators, in May, or the beginning of June, 1810.

On this evidence, the counsel for Humphreys objected, 1. That it did not appear that the plaintiff occupied the premises under any demise; 2. That it did not appear that Humphreys was a party to the submission, and, therefore, ought not to be bound by the award; 3. That it did not appear that the arbitrators had published their award; 4. The submission being by parol, it was not valid so as to affect the right to real property; but these objections were overruled by the judge.

The son of the plaintiff was then sworn as a witness, and testified that on the 1st of May, 1810, when his father was about moving into the house, as a tenant to Ross, an altercation arose between Gardner and Ross, and the plaintiff wished them to decide to whom the rent was to be paid; and thereupon Gardner and Ross agreed to submit the matter to Fisk and Storey, as arbitrators; that he understood the question submitted was, whether it was competent to Gardner, who was a co-executor, to give a lease to Ross.

It being objected that there was no proof that Humphreys had notice of the award, the judge decided that it was necessary to show there was notice before he could be charged. The counsel for Gardner then attempted to prove a notice, and insisted that it ought to be left to the' jury, from all the circumstances, to presume a notice to Humphreys; but the judge said that there was nothing shown to authorize such a presumption, and he charged the jury that for want of such notice, Humphreys was entitled to a verdict, and the jury found a verdict accordingly.

A motion was made to set aside the verdict, and for a new trial.

Fisk and Storey, for the defendants.

They cited 2 Chit. Pl. 80, 81. note. 2 Saund. 62. a. note (4). Bulst. 144. 2 Caines’ Rep. 320 . 1 Ld. Raym. 114. 10 Johns. Rep. 143 . Cro. Car. 133.

Ross and P. Ruggles, contra.

They cited Kyd on Awards, 115. 1 Bay’s Rep. 315. 1 Esp. Dig. 206.

It was proved upon the trial, by Colden, that on the 1st of May, 1810, there was a dispute between the defendant, Gardner, and one Ross, as to which of them belonged the right to let the house in question to Humphreys, and Humphreys being then in the act of moving in, it was agreed by Gardner and Ross, in the presence of Humphreys, to submit to two persons, then named as arbitrators, to determine to which of them Humphreys was to pay the rent for the ensuing year. The two arbitrators prove the same facts substantially, and one of them says he thinks Humphreys spoke to him and wished the question decided, and a son of Humphreys, introduced by him, also stated the same controversy and submission, as stated by Colden, and that Humphreys said, at the time of the altercation, that he wished Gardner and Ross would determine to whom he should pay the rent, and the submission to arbitration was thereupon made. The arbitrators met and heard the allegations of Ross and Gardner, and decided in the same month of May, 1810, that the rent ought to be paid to Gardner. Upon these facts, the question of notice to Humphreys of the award does not arise, lie was bound to take notice of the award at his peril, for he was present when it was submitted to the arbitrators to determine to whom he should pay the rent, and it was in proof that he was privy to the submission, and the conclusion is irresistible that it was so referred with his approbation. The parties claiming respectively the right to let, interpleaded, as it were, in his presence, and agreed to refer the question to the arbitrators, and he entered into possession with the knowledge of that interpleader and submission, and at the time it took place.

A new trial ought, therefore, to be awarded, with costs to abide the event of the suit.

New trial granted.