Warfield v. Holbrook ( 1838 )

Shaw C. J.

delivered the opinion of the Court. This action had formerly been referred to arbitrators under a rule referring this action and all claims of Holbrook against Warfield. The referees took into consideration all claims in this action by Lewis Warfield against Holbrook, and all claims by Holbrook, except a claim on a promissory note signed by Lewis and Samuel Warfield, jointly and severally, as hereafter stated. The referees find that there is nothing due to the plaintiff, will costs of court for the defendant.

It appears from the facts shown, that when the cause was referred, there was another action pending by Holbrook against Lewis Warfield and Samuel Warfield, claiming to recover upon a note for $500, alleged to have been signed by them, jointly and severally. That action was not in terms embraced in the submission ; whether the joint and several note, on which it pm ports to be founded, is so embraced or not, is a question in controversy between the parties.

When the hearing was had before the referees, Warfield claimed that Holbrook ought to bring forward that note as one of the claims of Holbrook against him, embraced in the submission, and filed a motion to that effect in writing. Holbrook, denying that that note was a demand against Lewis Warfield severally, and probably intending to proceed in his own action on that note, in the suit pending against Lewis and Samuel War-field jointly, declined bringing forward that demand, under this reference, and the referees did not take it into consideration, in the award above stated. Lewis Warfield, the sole plaintiff in this suit, now objects to the acceptance of this report, on the ground that it is not final, and does not pass upon all matters embraced in this submission, and moves that it be recommitted, with instructions to the referees to take into consideration the claim of Holbrook on the joint and several note. Warfield, the plaintiff, objects to the award, not because the referees refused or neglected to pass upon any demand brought forward by him against the defendant; but because they did not take into consideration a demand of the defendant against him, which he at the same time alleges is not due, which upon full notice, both to the defendant and to the referees, the defendant declined and refused to bring forward as being a joint demand against the plaintiff and another person, and not between the tame parties, who were parties to the submission.

The Court are of opinion, that these facts constitute no valid objection to the acceptance of this report. It was final as to all matters which the parties thought fit to bring before them. One short view of the subject seems to be decisive. If the joint and several note which the defendant claims to hold against the plaintiff and Samuel Warfield, was not embraced in the terms of the submission, then the referees could not pass upon it, it was not within their authority. If, as the plaintiff contends, it was embraced in the submission, this award and the judgment upon it will be a bar to any suit upon it in favor of Holbrook against the plaintiff. Dunn v. Murray, 9 Barn. & Cressw. 780 ; Smith v. Johnson, 15 East, 213. Taken either way, therefore, the fact that it was not brought forward by the defendant, forms no objection to the act of the referees, or to the acceptance of their report.

The cases where an award has been held to be bad, as not being final, and not embracing all the matters submitted, are those where through mistake of their authority, or oversight or other accident, the referees have neglected or refused to take into consideration, and pass upon demands, within their authority, and brought before them by one or the other of the parties. Robson v. Railston, 1 Barn. & Adolph. 723 ; Samuel v. Cooper, 2 Adolph. & Ellis, 752.

The facts under which this claim of Holbrook against Lewis and Samuel Warfield on the joint and several note, was brought to the notice of the referees, and the express claim of the plaintiffs to have it considered, will forever preclude him from maintaining, in his pending suit, or elsewhere, that it was overlooked through accident or mistake, one ground on which it has sometimes been held, that an award was no bar.

Besides, it is doubtful whether a recommitment of the award, with the instructions prayed for, and a new award therein, would be more effectual to bar the plaintiff in the other suit, from proceeding in his joint action against Lewis and Samuel Warfield, than the present award. The Court can confer no powers on the referees, not conferred by the parties, under their former submission, or extend their authority to demands not embraced in the note founded on the agreement of the parties. It could extend to nothing more, than affording the referees another opportunity of considering this demand, if the defendant should see fit to bring it forward, with notice to him, that if he did not bring it forward, he must take the consequence of being barred of any suit, if by law, an award oc such submission, and judgment on it, would be such a bar But the same effect must follow, from a judgment on the award as it now stands.

Whether such a judgment will be a bar, either to a joint action against Lewis and Samuel Warfield, or to a several action against the one or the other, are questions not yet before the Court, and upon which we give no opinion. Should the parties think fit hereafter to present them, they will he entitled to a distinct consideration.

Report accepted and judgment accordingly.