Pratt v. Hackett — 6 Johns. 14

Majority

p. 14

Pratt against Hackett.

NEW-YORK,

May, 1810.

Headnote

^ The submission to arbitration was so that the award, &c. should he delivered to the parties in difference, on or before a certain day; in an action on the bond the defendant pleaded,that no award was ready to be delivered to the parties, &c. and the plaintiff replied, that tho5 no award was ready to be delivered to the defendant, yet that an award was made, and ready to be delivered to the plaintiff, and was delivered to him; this replication, on demurrer, was , held bad. The authority given by the submission must be strictly pursued.

THIS was an action of debt, on an arbitration bond, conditioned to abide and perform the award of three arbitrators named, or any two of them, to be made in writing, under their hands and seals, ready to be delivered to the parties in difference, on or before the 20th December, 1808.

The defendant pleaded, 1. no award ; 2. that no award under the hands and seals of the arbitrators, or any two of them, 'was on or before the 20th December, 1808, ready to be delivered to the defendant, &c.

The plaintiff replied to the irs# plea, setting forth the award ; to the second plea, that although it was true, no award of the arbitrators, or any two of them, under their hands and seals, was, on or before the said 20th day of December, ready to be delivered to the said defendant yet that the said arbitrators, before that day.

p. 15

to wit, on, &c. having taken on themselves the burden , , of the award, &c. made and published their award, under their hands and seals, upon the premises, ready to be delivered to the plaintiff, and did, in fact, on the, &c. deliver their said award to the plaintiff, &c. (setting forth the award.)

To this replication there was a general demurrer and joinder.

Weston, in support of the demurrer.

The delivery of the award to both parlies is, by the terms of the submission, a condition precedent to any right of action on the award. The arbitrators are bound to pursue the terms of the submission. The submission is their authority, and it must be strictly observed. If it had been, that- the award should be by indenture, it would .have been requisite that the award should he indented.

In Block v. Palgrave,^[1] where the submission was, that the award was to be delivered to either of the parties, it was decided, that it must be delivered to both.

Skinner, contra.

Agreements of this kind are not to be taken strictly, but are to be construed largely and liberally.^[2] The delivery of the award to each party does not affect or touch the merits, or the right of action" under the award.

It is enough to deliver the award to the party in whose favour it is given.

The cases cited do not establish a contrary doctrine : they turn on the construction of the words either and or.

In the case of Munro v. Allaire,^[1] it was decided, that it was not necessary to aver, that the award was ready to be delivered; but it was suf

‡ ‡ 2Caines, sse3~G‘

p. 16

ficient to allege that the arbitrators made and published this award, and the delivery would be implied.

Skinner. That case does not decide the point now raised, for the replication states that the award was ready to be delivered to the plaintiff.

The demurrer in this ease is well taken. The authority given by the submission must be pursued. As the bond provided that the award must be ready to be delivered to the parties, it is no award until it is so ready; and though the cases (2 Caines, 326. Cro. Car. 541. Hard. 399. 1 Ld. Raym. 114.) have gone so far as to hold, that the making of the award was presumptive evidence, that it was ready for delivery; yet here that presumption is destroyed by the direct averment in the replication, that the award was not ready for delivery to the defendant, but was only ready for delivery to the plaintiff.

Judgment for the defendant.