Montifiori v. Engels , 3 Cal. 431 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

There is but one ground of demurrer which I think proper to consider,—the one alleging the incompleteness of the award.

It is urged that the award is not complete, because it was a part of the submission that the referee should find the interest of Reford, and the value of such interest in both the ship and cargo, whereas, he found such interest and value in the ship, and not in the cargo.

The referee reports, however, that he is unable, for want of evidence, to find the value of Reford’s interest in the cargo. This certainly does not render the award incomplete, because it is equivalent, for the purpose'of a legal adjudication, to finding no value whatever.

When parties agree to leave their dispute to an arbitrator, they are presumed to know that his award will be final and conclusive, and they must be required to exercise due diligence in procuring the evidence upon which to base a proper award. In this case it was only necessary for the plaintiffs, after having shown Reford to be the owner of one half the cargo, to have proved the value, and in the absence of anything to the contrary, this would have governed the finding. On the other hand, if the value of the cargo was to be reduced by the expenses of the voyage, it was the duty and interest of the defendants to prove the amount of those expenses.

The material defect in the declaration is the allegation of a right to recover outside of the award, when the stipulation of the defendants is substantially and only, to abide the award. This, however, has not been alleged as one of the grounds of demurrer, and therefore cannot avail the defendants. The grounds of demurrer taken are either technical, or otherwise unsubstantial, and therefore no effect will be given them.

The judgment is reversed, and the cause remanded, with leave to the plaintiffs to amend the declaration, and to the defendants to answer over, each party paying half the costs of this court.