Philip v. Wood ( 1818 )

Ridgely, Chancellor.

The complainant comes into this Court to recover in equity the sum of $366.00, upon an award made on a submission to arbitrators by the complainant and defendant, according to certain bonds entered into by them in March, 1810. The penalties of the bonds are $200.00 ; the sum awarded is $366.00. The bonds required that the award should be made in writing indented, and under the hands and seals of the arbitrators. The award was not indented, and was not under. the seals of the arbitrators ; and, therefore, it is bad at law, because it was not made pursuant to the submission. Cro. Ja. 277 : .1 Str. 116 : 1 Com. Dig. Arbitrament, p. 557. (I. 6.) The question, therefore, is whether a court of equity- will compel a performance or payment of the money, as the case has been made out.

According to 3 P. Wms. 187, a bill lies to compel a specific performance of an award to convey an estate, when the party submitting has received the money in consideration whereof he is to convey the estate. By this acceptance the defendant undertook to perform the award ; he consented to it, and made his own agreement for a valuable consideration, viz-: the money, paid. And, so in the case of Norton vs. Mascall, 2 Vern. 24, the award was decreed to be performed upon the footing of an agreement of the party to accept the money, thereby affirming the award and making it his own agreement. And so, are all the eases cited. The note in 3 P. Wms. 190 states- very clearly the difference between awards to pay money and awards to do anything in specie. In the latter case the acceptance of the money, or agreement to the award, is the true reason of compelling a specific performance ; especially as the party might be relieved by a bill in equity against the penalty of the bond, on making satisfaction or complying with the award ; but where money is to be paid there can be rarely any good reason to go into equity to compel it.

Ho case has been cited, and I can find none, where an award of any kind, unconnected with a subsequent agreement, has been carried into execution by a court of equity. On the contrary 1 Eq. Cas. Ab. 48 cites two cases where it has been determined that a void award, or an award differing from the submission, shall not be made good in equity. The case cited from 1 Com. Dig. 540, Arbitrament (E. 1,) that an award not indented is good, though the submission requires it to be so, is an addition made to that work, and refers to Barnes 55, which is an authority in no great estimation.

There is no proof that Wood ever agreed to pay the money, or in any sort, ever ratified by any promise, or by any act, the award; therefore, this case is not within the reason of the cases in 2 Vernon and 3 P. Wms.: nor within any principles upon which a court of equity should compel the payment of the money. In the bill, it is asserted that it was agreed by the parties, before the submission, that sheriff Lockwood should make no deed to Wood until the matters in controversy should be adjusted by arbitrators ; and that after the award was made, the complainant wrote to Lockwood, consenting that he should make a deed to Wood; upon which-, on the 21st of March 1810, a deed was accordingly made. All this is denied in the answer; and it is insisted that Lockwood, after the sale was confirmed, never refused to execute a deed. The sale was made on the 10th of May,1809. The purchase money, $105.65, was paid to Lockwood on the 15th of August 1809, with a promise by Lockwood, that if the sale should not be confirmed, he would return the money. These are the facts; and it is impossible to infer anything like an agree-by Wood, subsequent to the award, to pay the money awarded. The only circumstance that seems to have a relation to the award is that the deed was made on the 21st of March, the day after the award. But it would be carrying presumption to a great length, to draw a conclusion from that solitary, equivocal fact, against the answer too, that Wood had agreed to the award. The delay in making the deed is not to be accounted for by any testimony in the cause; and, therefore, it can have no weight in establishing any agreement by Wood to the award.

This case was compared by the complainant’s counsel to a joint bond, which a court of equity would set up against the representatives of a deceased obligor. The comparison fails in this respect. Such a bond is considered as an agreement in writing; and, therefore, though the obligation and penalty are gone by the legal demand being gone, yet the condition, taking it altogether, being considered as an agreement to pay the money, under hand and seal, the Court will set it up against the representatives of the person making such bond. But an award not made according to the submission, and therefore void at law and in equity, never could be deemed the agreement of the party; and, therefore, to set it up would be making a new agreement. I can find no case in which a joint bond has been set up against the heir of a deceased obligor, where the heir has not been named in the bond. Equity only gives a remedy but does not vary the agreement.

.It is not necessary to inquire into the merits of the award. As to the receipt of the rents by Baisin, before the sale of the land, that makes no part of the case in the bill or answer.

Upon the whole, the bill must be dismissed, with costs.