Byrd v. Odem , 9 Ala. 755 ( 1846 )

COLLIER, C. J.

The possession by the complainant, of the premises in question, under a verbal contract of sale— making valuable improvements thereon with* the assent and co-operation of the defendant, the execution of a receipt by the latter for a large sum of money in part payment of an undivided half of the land purchased by the defendant of Peter T. Guerry, and the acceptance by him of the complainant’s note for the residue of the purchase money, are quite sufficient to take the case out of the statute of frauds.

In respect to the advance of money or other ground of indebtedness, it is enough to say, that so far as they are disconnected with the purchase of the land, either in the inception of the contract, or by subsequent arragement, they cannot be taken into consideration in determining whether a specific performance by the defendant should be enforced. This conclusion will of course place out of view the entire account of the defendant, except items which embrace the demands for one half the amount collected on McDougald’s note, and interest upon money borrowed for complainant’s benefit. The first of these items cannot be regarded as a legal .charge ; and consequently is not recoverable. It is explicitly stated by the defendant*in his answer, that the complainant was unwilling to sue McDougald on the note which he held against him, and agreed with the defendant to allow him one half of what he might collect, if he would institute a suit thereupon in his own name. This agreement is the ground of the defendant’s claim to. a moiety of what he collected, as the result of a seriously contested action on the note. Assuming that the answer is literally true, and the agreement cannot be enforced. To assist one with money or otherwise, to prosecute or defend, except in some special cases in which it is tolerated out of charity and compassion, is an oifence at common law called maintenance, punishable with fine and imprisonment. So, to carry on a party’s suit at one’s own expense, under an agreement to divide the matter sued for between them, if they succeed, is a species of maintenance designated champerty. Now it is perfectly clear, that the contract of the parties in respect to McDougald’s note, contemplated the commission of champerty, by the defendant, and taking his statement to be true, the offence was actually consummated. This being the case, the stipulation was in violation of law, and a court of justice will not lend its aid to enforce it.

The defendant’s answer is sustained by the testimony of the witness, Strickland, in the allegation that the complainant was to pay half the purchase money, costs, and interest on borrowed money; that he was to provide for the second payment. It is shown by other witnesses that complainant failed to meet this payment, and authorized the defendant to borrow the money, cost what it might. Defendant accordingly borrowed the money, at 20 per cent, interest, which he paid on more than two thousand dollars for two years'. Whether the complainants undertaking to make the defendant’s second payment to Guerry, and subsequent authority to borrow money at any rate of interest, would impose on him the obligation to pay more than eight per cent., is a question which, in the present condition of the case, need not be considered. And it is alike unimportant to inquire, whether the defendant gave the receipt to the complainant, and accepted the note of the latter as the result of a final settlement of their indebtedness to each other; no matter what might be the conclusion upon these points, if they were now presented. It is shown by the answer and proof, that the parties, after the settlement was made, differed as to the liability of the complainant to pay interest upon money which the defendant had borrowed, to enable him to pay for the land ; and for the purpose of adjusting that difference, submitted the matter to five individuals chosen by them. These arbitrators made their award, in which they find that the defendant borrowed two thousand and thirty-five dollars, and adjudge that the complainant should pay him interest thereon for two years, amouuting to three hundred and twenty-five dollars and sixty cents ; further, that the interest should be considered as due at the time the award was made. True, the submission was not made under the direction of our statutes, in respect to arbitrations, yet these statutes have never been supposed to abrogate the common law upon the subject but are regarded rather as cumulative, except so far as they may conic in conflict. Now ,to entitle a party to have an award in a case not pending in court, made an operative judgment on motion, it may be necessary that the provisions of the statutes should be followed, yet there are no negative terms employed that exclude the idea that a submission may be made by parol or otherwise, as at common law.

That arbitration and award was recognized at the common law, as a mode of adjusting matters in dispute, especially such as concerned personal chattels, or personal wrongs, is a clear proposition. [3 Bl. Com. 16.] And whenever the thing in dispute may be passed without writing, an oral submission and an award, has all the effect oí a written one. [Evans v. McKinney, 6 Litt. Rep. 264; Martin v. Chapman, 1 Ala. R. 278.] A misjudgment of arbitrators, (although it may bo a misapprehension of law,) on a case fairly before them, is not alone sufficient cause for setting aside an award. [Baker v. Crockett, Hard. Rep. 388; Smith v. Smith, 4 Rand. R. 95.] It has accordingly been held, that if an action of slander be .submitted, and the arbitrators award a sum of money for words which are not actionable, the court will not interfere to set it aside. [Shephard v. Watrous, 3 Caine’s Rep. 166; see also, Walker v. Sanborn, 8 Greenl. Rep. 288; Smith v. Thorndike, Id. 119; Bigelow v. Newell, 10 Pick. Rep. 348.] Where however the award is palpably against law, when the arbitrators meant to decide otherwise, the court it is said should set it aside; for it is not what the arbitrators intended it .should be. [Jones v. Frazier, 1 Hawks. Rep. 379; Greenough v. Rolfe, 4 N. Hamp. Rep. 357; Roosevelt v. Thurmau, 1 Johns. Ch. Rep. 220.] But if they intended to conform to what equity and good conscience required of the parties, rather than strict law, their award should be supported. [Jocelyn v. Donnel, Peck’s Rep. 274; Stevens v. Pearson, 5 Verm. Rep. 503; see also, 14 Johns. Rep. 96.]

Again; courts construe awards with great liberality and latitude, and according to the intention as indicated by the entire instrument; and every reasonable intendment is to be made in favor of it. [Joy v. Simpson, 2 N. Hamp. R. 179; Gonsales v. Deavers, 2 Yeates’ Rep. 539; Sumter v. Munell, 2 Bay’s Rep. 450; Richards v. Brockenbrough’s adm’r, 1 Rand. Rep. 449; Archer v. Williamson, 2 Har. & G. Rep. 67; Karthous v. Ferrer, 1 Pet. Rep. 222.]

We have stated these principles to show that the award is decisive of the dispute in respect to the interest upon money borrowed by the defendant; that, whether' the conclusion of the arbitrators was conformable to law or not, is wholly immaterial, as, instead of failing to express their intention, it is fairly inferible that the award is precisely what they intended. The sum adjudged to the defendant is affirmed to be then due, and of course could not have been accounted for by the complainant, in the settlement he had with the defendant on the 9th January, 1841.

The Chancellor supposed that the connection of the arbitration and award with the contract of the parties in respect to the land, was not sufficiently' apparent to authorize the court to consider it as an objection to the relief prayed. If the submission and award are considered without reference to any thing extrinsic, the objection to their relevancy would be well founded. But they are introduced by the defendant as exhibits to his answer, with suitable explanations, showing their pertinency; and in this respect the answer is well sustained by the proof. Taking all these together, and the conclusion must be, that in order to complete his payment for the land, the complainant should satisfy the award. This being done, no objection is perceived to the enforcement of a specific execution of defendant’s contract.

The failure of the defendant to bring into court the complainant’s note, and the withdrawal, under its order, of the amount thereof, which the complainant had deposited with the Register, cannot impair the defence set up to the relief sought. No requisition seems to have been made for the production of the note, and the defendant was entitled, as both parties, admit, to the amount thereof; and the question was, .whether more was due. The order of the court was intended to do justice to the parties as near as might be, pending the litigation, without intending in any manner, either in itself, or its consequences, to affect their rights ultimately.

Whether the amount adjudged by the award to be due to the defendant may not be overbalanced by what the latter is indebted for the occupancy of more than his proportion of the land in controversy, the record will not enable us understandingly to determine. That the defendant has since 1841, occupied largely more than a moiety of the cleared land, is apparent from the testimony; but how long he occupied it, or whether his possession still continues, or whether he has not expended much more labor than the complainant in making improvements — under what agreement (if any) improvements were made — whether his occupancy more than compensates all the labor he performed beyond an equal proportion, are questions that should be adjusted, and reported upon by the master. That these matters, and such others as appropriately arise, may all be fairly and equitably settled, after a reference and report, the decree is reversed and the cause is remanded. In thus disposing of the cause, it is not intended to intimate, that if the balance shall be found to be in favor of the complainant, he will, under the frame of his bill, be entitled to a decree for the amount.