Coulter v. Hitchens , 3 Del. 70 ( 1840 )

AMICABLE action. Reference "of all matters at variance between the parties to this suit, touching this cause of action." Report that the defendant, Selby Hitchens, is indebted to the plaintiff, William V. Coulter, $963 20; and "that each party is equally bound to pay for the rigging or any debts that are standing against the schooner Pacific, in Philadelphia."

Motion to set aside the award, founded on an affidavit of Hitchens, that he was charged in Philadelphia with several debts incurred by him in rigging the Pacific; Coulter not being known as the owner.

Houston, in support of the motion: — The award is of matter against law. It supposes a joint liability for these debts in both these parties, whereas Hitchens alone is responsible for them. 2d. The report and award must be set aside for uncertainty. It does not ascertain what is due from the defendant. (Kidd on Awards 130;Comyn's Digest, Arbitr. E. F.; 2 Saund. Rep. 293, a. n. 1;Watson on Arbit. Awards 53; 11 Law Lib. 33.)

Cullen and Ridgely, contra: — Awards are much favored by our courts. (1 Harr. Rep. 398; Watson on Arb.;Kyd on Awards 201, 242.) The matters in controversy submitted were the price of a vessel on the one part, and the payment or liability to pay certain debts in Philadelphia on her account, on the other part. The award settles both. It finds a certain sum due from Hutchins to Coulter, and that each party shall pay half of the debts in Philadelphia, on account of the vessel. This is sufficiently certain. The amount of these debts is unimportant, as each party is bound to pay half. This part of the award is in favor of the party now objecting to it.

Houston, in reply: — The award is uncertain in its meaning. It is doubtful whether it means that the parties shall contribute between themselves to the payment of all debts in Philadelphia, without intending to decide who is primarily liable, or whether it means to decide the question of law, as to the liability to pay these debts.

Per Curiam The first ground is insufficient. The award is not that the parties were jointly liable to the creditors in Philadelphia, but that they shall contribute between themselves equally to the payment of those debts. The terms of the award are loose, and would literally bear the construction given to it by Mr. Houston; but, as that was not a matter submitted to the referees it is not probable that they designed to determine the liability of either party to creditors, but only their liability as between themselves. The meaning of it is that they shall contribute equally to the payment of these debts in Philadelphia, however they may stand bound to the creditors there. "Id certum est quod certum reddi potest," is a maxim that applies to awards as well as any thing else. The debts in Philadelphia are capable of being reduced to a certainly as to amount; nor does it seem to be of so much consequence in this case, as these debts, whatever may be their amount, are to be equally paid by each part. The only difficulty is in the mode of enforcing a judgment on the award. In England awards are by submission out of court by bond, or by agreement to submit under a rule of court, sanctioned by statute 9 and 10, William III., (Kyd 21,) in reference to actions ex contractu. In our State awards are upon two acts. (Dig. 111-2.) The first act refers to matters of account, and would seem to confine the report or judgment to sums of money; which, as the judgment would be fully executed by the court, must be positively certain. But the act following, passed many years after, seems to recognize the reference and award in other actions than those of mutual accounts — in all actions, those of tort as well as of contract. Being thus extended, as it has also been in practice, it follows that where the report is of a sum found due, the judgment follows as in an award in England: but if it embrace other matters, the judgment may still go for the sum found clue, and the parties be left as to the other matters settled by the reference to their action under the award or otherwise. If this part of the award was so connected with the sum found due as to render that uncertain, of course no judgment could be rendered on any part. But as to the return in this case, we do not think there is any uncertainty in any part of it that will vitiate, or which can possibly prejudice either party. Whatever debts may exist in Philadelphia against this vessel, must be paid by these parties equally, whoever is primarily liable.

Report confirmed.