McCargo v. Crutcher , 23 Ala. 575 ( 1853 )

CHILTON, C. J.

It is too well settled now to admit of discussion, that where an award is made upon a parol submission, there assumpsit is maintainable ; but where it is made upon an agreement or submission under seal, and the non-payment of the amount awarded is a breach of such agreement, assumpsit cannot be maintained, but debt or covenant according to circumstances.

The’submission in the case before us binds the parties to abide by the'a-W'ard. True no penalty is affixed, but this is not essential- to- constitute the submission binding and obligatory, and the submission is under seal.

’ It is said, they bind themselves as “gentlemen,” and this shows that the agreement was regarded as merely creating an honorable, not a legal obligation. We think the converse of the proposition was most likely in the contemplation of the parties, namely, that they not only bound themselves legally to abide by the award, but superadded to their legal obligation a mutual pledge to observe and keep it, by being bound “ as gentlemen,” as honorable men.

The counsel for the defendant in error are mistaken in supposing that no action can be maintained on the submission; for a breach of it in refusing to abide by the award. We think it clear that the party might have sued in covenant, averring as a breach the non-payment of the sum awarded to be paid; so that the case in 8 Porter 333 has no application.

Mr. Chitty (vol. I, p. 101) says: “Assumpsit lies upon awards, where the submission is not by deed.”

Mr. Watson (on Awards 355) says : “ In all cases, excepting whore the submission is by bond, or agreement under seal, an action of assumpsit will lie against a party for the non-performance of an award.” See also, to the same effect, Billings on Awards 374.

It follows that the circuit judge improperly refused to charge that this action (assumpsit) could not be maintained on the award produced in evidence. As this point will be, in all probability, decisive-of the case, we will not notice the other errors assigned.

J udgment reversed, and cause remanded if desired.