Keep v. Goodrich — 12 Johns. 397

Majority

p. 397

Keep & Hale against Goodrich.

Headnote

ln ¡,ssllttpsiti dn aiopnart°,i aSítií pr°0m¡YeBóf ¡¡¡1 pliformntt’he a°matero be*m theMd p?a‘inunv the award, on his part, and -both promises were laid in the declaratlim t0 be concurrent; and í?¡aiPwaíatthat Sam ‘several ¡h“|S8thPorlvJ«°' g¡eod8t» ’abide iiVyet’thm? It pontiff eéJar though the ‘debound by his ^ai'¿tjír,'¿appt ¡™\oid'BWtí,m ioUud" by Ms a! w“tifo’ut“ny rml ration ™?tMhe awardS1nari2’,i” imiu," tbit the ¡asé”'not "being concurrent, the defendant's pro. Í™ Mm‘

THIS was an action of assumpsit. The declaration contain-fed three counts. The first stated, that certain differences having arisen between the plaintiffs, as executors of Nathan Hale, deceased, and the defendant, concerning a promissory note, made by the defendant to their testator, dated the 7th day of February, 1797, by1 which the defendant promised to pay him, for value received, 69Z. 3s. 8d. lawful money, on demand, with law- p , . . . ’ iUl interest, at six per cent., in certain liquidated securities given _ ^ 1 1 b foy the treasurer oí Connecticut: and that to put an end to such v . ' 1 differences, the parties, heretofore, to, w-it, &c, ie respectively submitted themselves, to the award of John Elmore, to be made between, them, of, and concerning the said differences; and in consideration thereof, and that the plaintiff, at the special instance and request of the defendant, had, then and there, undertaken, and promised the defendant to perform and fulfil the award of the said John Elmore, to be made, &c. of and concerning the said differences, in all things on their part to be performed and fulfilled, he, the defendant, undertook, &c. to perform and fulfil the said award, in all things,” &c. The plaintiffs averred that Elmore having taken upon himself the burthen of the arbitrament, did, on the 15th of May, 1814, at, &c, make his award in writing, &c. and thereby awarded, that the defendant should pay the said plaintiffs, as executors aforesaid, the sum of 391'dollars and 31 cents, in full satisfaction of their claim on the said note, of which said award, the said defendant, • nil- 11,10 afterwards, to wit, &c. had notice; and although olten requested, &c. to pay the said sum, &c. according to the tenor and effect of the said award, and of his promise, &c.; yet, not* regarding, &c. he did not pay, &c. The second count was on an

p. 398

insimul computassent. The third count was also on an insimuj, computassent, with the plaintiffs, as executors, See.

The defendant pleaded the general issue, with notice of set-off.

At the trial, the plaintiffs gave in evidence, a letter of the defendant, dated Albany, August 19th, 1811, addressed to John Elmore, in which, speaking of the claim of the plaintiffs, and alleging that he owed nothing, he says : “ But I have agreed for you to say what I shall do in this case, and hold myself obligated accordingly,” &c. On the 23d of November, 1811, the defendant again wrote to Elmore on the same subject, and promised to send him some papers relative to his payments, he.

On the 8th of January, .1814, he again wrote to Elmore, and, after mentioning that he had been called on again by the plaintiffs, about the business, he says : “ I still wish you to make up your mind on this business, as I am willing to agree to your decision, and abide your judgment.”

The defendant, on the 8th of January, 1814, wrote to Elmore as follows: “ 1 wrote you some time since, concerning Squire Hale and myself. I wish you to make up your mind according to what you have understood, as you have had more knowledge than any other person about my business. I think I made a kind of statement to you. I am called upon by Mr. Keep, and. have renewed a line to you on the matter; and I wish you to look into the business, and give your opinion, for a full settlement of the business,” &c. “N. B. I am willing to have the note matter settled on your opinion.”

On the 28th of January, 1814, Elmore, who lived at Canaan, in the state of Connecticut, wrote to the defendant at Albany, acknowledging the receipt of his letter of the 8th of January, saying, he should have no objection to determine what was right in the matter, if they (the plaintiffs) would agree to it, after having the circumstances stated to him again, as they were somewhat out of his mind. “ But they will not agree to abide my judgment; for J. Hale (one of the plaintiffs) told me, when he called on me, some time since, for my opinion in the matter, that you was bound to abide my judgment, but he was not, unless he liked it. I then told him, I would not determine it, unless he was bound also. If they will agree with you, to refer their claim to me, and give me a statement of the fact, I will determine the question between you.”

p. 399

Elmore testified, that he had not seen the defendant for some time previous to the 19th of August, 1811, nor since, until after he made his award; and that the defendant had never appeared before him, nor submitted the matter in controversy to him, otherwise than as is contained in the above letters. That after writing the letter to the defendant, of the 28th of J anuary, 1814, one of the plaintiffs, who resided at Goshen, in Connecticut, called on him, and agreed that they would be bound, and abide by his award. No notice of the time and place where he would meet, to make up an award, was given by him, to the defendant; nor did he inform the defendant, that he had taken upon himself to decide between the parties ; nor that the plaintiffs had agreed to abide by his decision; nor was the defendant present when he undertook to make up his decision.

The plaintiffs produced an award in writing, dated, Canaan, May 15th, 1814, which, after reciting that the plaintiffs, as executors, &c. and the defendant, had submitted the controversy subsisting between them, relative to a promissory note, &c. .and that, “ having heard the parties, and taken the case into consideration,” he was of opinion that there was due to the plaintiffs, as executors, &c., on the said note, 391 dollars and 31 cents ; and, therefore, he awarded, that the defendant should pay to the plaintiffs the said sum, in full satisfaction for their claim on the said note.

The judge charged the jury, that, in his opinion, there was sufficient evidence of a submission, on the part of the defendant, of the matter in difference between the plaintiffs and defendant; and that, without regarding the matter as a submission to Elmore, he might be considered as having been constituted the agent of the defendant, to adjust and ascertain the amount due on the note. The jury found a verdict for the plaintiffs, for 417 dollars and 50 cents.

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

Parker, for the defendant.

H. Bleecker, contra.

delivered the opinion of the court. It is very clear, that Elmore did not act as the private agent of the defend

p. 400

ant, in' adjusting the claim made on him by the plaintiffs. He made- a formal award between the parties, '"and- refused to act, the plaintiffs agreed to be bound also.' 'The eou-nt on an, insimul computassmt cannot be maintained, * .

• The real question is, whether the defendant is bound by the award, it appearingblearly in evidence, that the plaintiffs’ f-e-fused to be concluded by'it, up to the 3.8th of January, 1814, Subsequent to that time, the plaintiffs agreed to be bound by the award; but the defendant’s .agreement to submit to Elmore, -and to be bound by his decision, was on, or anterior to, the 8th of January, 1814; so that there was no point of time when, both parties,-bound themselves, by-agreement with each other, to submit their controversy to Elmore, and to be bound by his award. ' • ’ - - :

In Livingston v. Rogers, ( 1 Caines' Rep. 583 .) it was decided, that in assumpsit on mutual promises, the declaration’must allege that they were concurrent. In that case, the promise^ was stated, “ and. that -in consideration the plaintiffs had, at the defendant’s request, promised to perform his part;. the -defendant, -afterwards, to wit, the same- day-, promised,” &c.' The court were of-opinion that the judgment ought to be arrested; but-there-being á good count, and a motion to amend, leave was given for that purpose, on payment of all the costs.

The only consideration, in this case, for the defendant’s promise, is the plaintiffs’ promise ; and it is alleged, in both counts on the award, -that the defendant’s promise was. made in cbnsideration of the-plaintiff’s promise, and both promises are’laid as -concurrent nets; and we have seen', that if'the promises were not alleged to have been made concurrently, it would have been good ground for arresting the judgment. .-’ It is a oeceSsaary.tonsequence, that the proof shquld support, this allegation in the declaration,, and show that, in point óf fact, the promises were considerations reciprocally for the parties, Here the proof negatives the fact, that the consideration of the defendant’s promise to submit and abide by the award of Elmore, was, that the plaintiffs frad, at the same time,', made the like promise; for it clearly appears, that the. plaintiffs -refused to submit and be bound by Elmore*s award, long after the defendant professed a. willingness to make the submission.

In Tucker v. Woods^[1] we recognised the’-principle that, in contracts where the promise of one.-party is the consideration

* Ante, 190.

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.Cor the promise of the other, the promises must be concurrent and obligatory upon both at the same time; and, in addition to the case in Caines, 1 Chitty's Pl. 297., and 3 T. R. 653., were cited, which fully warrant the position. The same doctrine is contained in Paine v. Cave, (3 T. R. 148.) and in Kingston v. Phelps, (Peake's N. P. 227.)' The plaintiff proved that the defendant consented to be bound by an award to be made on a submission by other underwriters on the same policy, but the witness proved no agreement on the part of the plaintiff to be bound by the award. Lord Kenyon held, that there was no mutuality, and, therefore, the defendant’s agreement was a mere nudum pactum. It is correctly stated by Kent, J., in Livingston v. Rogers, that Hobart (88.) observes, that the promises must be at one instant; for, else, they will be both nuda pacta.

There must be a new trial, with costs to abide the event of the suit.

New trial granted.