Hardin v. Brown , 27 Ga. 314 ( 1859 )

By the Court.

Lumpkin J.

delivering the opinion.

This case is somewhat tangled up -by the direction it .has taken. It will be found, however, to turn mainly upon the validity of the award rendered between the parties.

Hardin bought of Brown a negro woman and child for $1,100. He paid ifSOO cash, and gave the notes of Jonah D. Calloway and Dr. A. W. Purifoy, which he held, for the balance of the purchase money. Brown warranted.the slaves to be sound in body and mind. Hardin kept the negroes four months, and being dissatisfied with the-trade, went to Brown to rescind the contract. After parleying with one another, Hardin asserting that the negro woman was worth as much as when he.bought her, Brown agreed .to the rescission. Not having the cash to refund, he gave his note to Hardin for $800,and re-delivered,to him Calloway and Purifoy’s .notes, at the same' time taking back his bill of, sale. The woman, whom Brown had not seen since he parted with .her, died the same night, and .within twelve hours after this second contract, which took place at Brown’s house, some ten miles off from Hardin’s plantation, wh.ere the negro was. Brown refused to pay his note, alleging that he had been defrauded by Hardin.

They then consented to submit their matters to seven arbitrators, who met, and after hearing the testimony, awarded that .Hardin should retain the notes, and Brown .take back the negro child. In other words, that th.e arrangement between the parties should stand. The child was sent home to Brown, and he still has it.

[1.] Hardin sued on the $>800 no.te, and Brown pleaded failure of consideration, and fraud.in the procurement of the note. Hardin replied, in effect, the award as a bar to this defence. Brown rejoined, that the award was fraudulently obtained and void. Hardin, by his counsel, objects to the award being attacked in a Court of Law. But w.e hold, that the judgment of a Court in this State, may b.e vacated for fraud, at law, and of course an award .of arbitrators may be.

[2.] Again, Hardin insists, that an award can only be attacked for fraud in the arbitrators. And this is true, under the Act of 1856. But th.is is an award at.common law, and not a submission under that Act. Corruption or partiality are grounds for setting aside an award at common law. And so is a mistake, into which the arbitrators have been led by undue means, or into which they have been permitted to fall by the fraudulent concealment of .the party or his agent Metcalf vs. Ives, 1 Atk. 63; Russell on the Power and Duties of Arbitrators, 53, 1 Lib. new series, 636. A Court, in such cases, does not correct an award, or revise the decision of the arbitrators; but holds it to-be against conscience to take advantage of the award,.by seeking to enforce it, or by using it as a plea to bar a defence.

The complaint against the ayard in this case is this; When Brown sold the woman Eliza to.Hardin, he supposed she was pregnant, although he.did not warrant it. When told of her situation by Dennis, the overseer of Hardin, he admitted that if she was not pregnant, she was diseased. The fact of her pregnancy, then, became to be very material in the altercations between the parties. She had been dead and buried eighteen days when the arbitration took place. The night before the arbitration, Hardin procured Dr. Simmons, who was not his family physician, and who had not attended the woman, to disinter her remains, and make a post mortem examination. This was done at 9 o’clock the over-night, by torch light, and within five minutes time! Dr. Simmons testified before the arbitrators the next day not only that there was no foetus in the womb, but that none could have been there from thirty to sixty days before her death! And this proof sprung upon Brown without notice, and given in just at the heel of the investigation, in all probability controlled the case. While Brown was attempting to prove that the woman was sound when he sold her, Hardin stated emphatically, that he did not dispute it, remarking that he had Brown by the leg, any how. But this was not all. Subsequently to the award, the child was sent to Brown’s, and with it, the clothes and bedding of the woman, the whole stained with blood, and the mattress on which she lay saturated so as to he wet through, and her apparel partiajly mutilated,and some of it removed. And these facts coming to the knowledge of Brown, determined him to resist the payment of the note, and the execution of the award. Three of the arbitrators swear, that if they had seen these clothes, furnishing such strong presumptive evidence that the womanhad given birth to a child, living or dead, they would not have rendered the award which they did. The weight of medical authority is altogether against the opinion of Dr. Simmons. Physicians who hear testimony to his skill and integrity, express it as their decided belief, that Dr. Sitnmons could have come to no satisfactory conclusion under the circumstances which attended his examination.

Well, with ail this proof before them, the Court instructed the jury, that if the defendant had shown fraud on the part of the plaintiff, in procuring this award, which he had a right to do, they should find for the defendant, if they should further believe that the note was originally procured by fraud, and the consideration had failed.

The charge is fair, and there is abundant proof in the record to support the verdict.

We sustain the Court upon all the exceptions taken to the admissibility of evidence during the trial, and in refusing to withdraw any portion after it was admitted. And affirm generally the judgment of the Court below.

Judgment affirmed.