Armstrong v. Robinson , 5 G. & J. 412 ( 1833 )

Buchasaíí, Ch. J.,

delivered the opinion of the court.

The first question raised upon the pleadings in this cause is, whether according to the proper construction of the arbitration bond on which the suit is brought, the award should not have been made within three months from the date of the bond.

No time is limited in the condition of the bond for making the award, but the argument on the part of the appellant, in support of the affirmative of the proposition, is drawn from the words, “by us to be paid to the said Robert Robinson fy Co. three months from the date hereof,” to be found in the obligatory part of it. At first blush there would seem to be something in it, and as if the obligation to pay, three months from the date of the bond, looked to the award being made within that time ; the intention being, that the bond should not become absolute before an award should be made. But if the words, “ by us to be paid three months from the date hereof,” had been altogether omitted, and no time of payment mentioned, so that as in the case of an ordinary bond, without any limitation of time in the condition for the payment of the money, looking to the language of the obligatory part of it only, it would have been payable immediately, it would scarcely be said that the award was required to be made instanter,— complicated commercial transactions constituting the subject of the submission; and that if not so made, the bond would have become inoperative, and that no suit could have been sustained upon it, for the non-compliance with an award made three days afterwards. Such a construction could never be given to such a bond, which would be to render it a nullity from the moment of its execution. But being an undertaking for the performance of an award to bo subsequently made, though payable on its face immediately, it only becomes absolute on the failure, or refusal of the obligor to perform the award when made, which must be done within the time limited in the condition, if there be such a limitation of time; and if not, then at any indefinite time. The limitation of the time for making the award (where there is any,) being always in the condition of the bond, that being one of the offices of the condition. And it is wholly immaterial whether there be any time of payment specified in the obligatory part of the bond or not; since it is not on the failure of the obligor, to pay the amount of the sum mentioned in the bond that his liability attaches, but on his failure only to perform the award. His obligation being not to pay the sum mentioned in the bond, at the expiration of the time specified, but to perform the condition on pain of forfeiting the penalty. The object, therefore, of introducing the words, “ by us to be paid three months from the date hereof,” must be understood to have been to protect the obligor against an action upon the bond, before the expiration of that time, in the event of an award being made within the three months, which may have been thought probable by the parties. And after the expiration of the three months, the bond stood as if no such words had been used; and as if they had been originally omitted, awaiting the action of the arbitrators, and the violation of the condition by the obligor, to give to the obligees a right of action; which could only accrue on such violation, in neglecting or refusing to perform the award when made, until when, it gave to the obligees no action, or demand against the obligor. And no time being limited in the condition for the making the award, the arbitrators named had their own time for doing it, without being restricted to three months as has been supposed. It cannot be denied, that though the time of payment mentioned in the bond, is three months after the date, if the time for making the award had been limited in the condition to six months, (which might well have been,) and the award had been made at any time after three months, but within six months, it would have been good, and within the submission. And the only difference is, that here no time is limited in the condition, and therefore a greater latitude is given.

The bond was given by Robert Armstrong 8f Co. to Robert Robinson &f Co. The suit is against Robert Armstrong, and the declaration alleges, that Robert Armstrong acknowledged himself to be held, and firmly bound unto Thomas Robinson and Robert Robinson, by the name and style of Robert Robinson Sf Co. &e. &c. It is difficult to believe, that the objection raised to this mode of declaring was seriously made, or much relied upon.

It is an established rule, that in actions founded upon contract, whether by parol or deed, if the demand or cause of action be joint, all the parties, if alive, must join in bringing the action, which should properly be in their names, and not in the name of the company, or firm, where it is a company, or firm, that has the cause of action ; and that, as far as appears from the record, is what has been done here; the appellees, Thomas and Robert Robinson, alleging in their declaration, that the undertaking was to them by the name and style of Robert Robinson Co. If Thomas and Robert Robinson, are not the only members of the firm of Robert Robinson 8f Co. to whom the bond was given, the appellant might have availed himself of the non-joinder, by proof at the trial, or he might have pleaded that matter in abatement, which was not done. And if it had appeared on the record by the pleadings, he might have taken advantage of it by demurrer. But not appearing on the record, even if the fact exists, it cannot be reached by the demurrer in this case, and the mere mode of declaring is not obnoxious to any objection arising upon the demurrer. It is a correct mode of declaring, and it is always sufficient, if the plaintiffs are proved to be the members of the company or firm, and the persons meant by the name and style used in the instrument.

Whether the suit was properly instituted against Robert Armstrong, is a question not open on the demurrer. It does not appear on the record, that there was any other person jointly bound in the bond with Robert Armstrong, who was living at the time the suit was brought, and who should have been joined in the action. It does not appear upon the record, nor is it a presumption of law, that Robert Armstrong, and Robert Armstrong fy Co. are not one, and the same person, or that there was any other person living at the time the suit was brought, belonging to that firm, and bound, by the bond, except Robert Armstrong; and not appearing on the record, if there was any such person so bound, and alive when the suit was brought, the appellant should have taken advantage of the non-joinder by a plea in abatement. As to the supposed variance between the bond produced, and the bond declared upon, it is not perceived to exist. The proferí brought the bond into court, and by the oyer it was spread upon the record, and made a part of the declaration to which the plea was pleaded. And being thus made a part of the declaration, and admitted by the plea of no award within three months from the date, of and concerning the matters in the conditioned mentioned and referred, there is no variance between the bond declared upon, and the bond produced; the record showing the bond declared upon to be a bond of Robert Armstrong Sf Co., and the bond produced, being alike' bond of Robert Armstrong Sf Co.

In declaring on a bond, it is not necessary to set it out it hcec verba, but it is sufficient if it is stated according to' its true legal effect and operation. If there were other persons than Robert Armstrong belonging to the firm, he was not competent to bind his partners to the submission. The bond therefore, though not binding on such partners, was his bond, and binding on him. And being his bond, it was declared upon according to its true legal effect. It makes no difference that it was given in the name of Robert Armstrong Sf Co., it was not the less his bond, and the suit could not properly have been brought against Robert Armstrong Sf Co., not being a corporation. It is objected that the award does not pursue the submission; and if so, it is certainly bad. It is necessary then to see what was submitted, and what the arbitrators have awarded.

The submission is of “several difficulties existing in the settlement of,,mpqi effy.agd commercial concerns, between Robert Armstrong■'¿yyCoy. and Robert Robinson Sf Co.” Robert Armstrong, by fth.e name and style of “ Robert Armstrong Sf-Cobdjlnd, himself, that Robert Armstrong Si- Co. should. comply with the award of the arbitrators, and the toward is1, !f‘that iio6e?’i Armstrong shall pay, or cause to be paid.,-.hy,,üó5erí Armstrong Sf Co. to Robert Robinson Sf Co. the sum of $4500, in full of all claims, accounts, and demands whatsoever, between Robert Armstrong Sf Co. and Robert Robinson Sf Co., arising out of the commercial and monied transactions between the companies,” with a provision for mutual releases between the companies, in relation to the matters submitted.

The award then being an adjustment of all the monied and commercial transactions, between Robert Armstrong Sf. Co., and Robert Robinson Sf Co., it is so far, clearly within the submission. And as to the sum awarded to be paid to Robert Robinson Co., it may be considered as in effect an award, that Robert Armstrong fy Co. should pay it; being awarded on account, and in full of all the demands against them, which were submitted to the arbitrators ; and the direction being that Robert Armstrong shall pay it, or cause it to be paid by Robert Armstrong Sf Co.; or viewing it as an award that Robert Armstrong shall pay it, it does no more than follow the condition of the bond, which is, that Robert Armstrong fy Co. shall comply with the award. lie could not bind his partners if there were any others alive belonging to the firm; but he could, and did bind himself, (the bond according to its legal effect being his alone,) that Robert Armstrong &/ Co. should comply with the award of the arbitrators. He undertook in behalf of the company to submit the matters in dispute, which did not bind his partners, if he had any who were alive, but it bound him so far as his interest was concerned ; and he might very well bind himself in an undertaking that the others, or that he and the others, should comply with the award. And being a party to the submission, and bound on behalf of the cp^j^gBSSraad the award being expressly upon the matt""^itifeá^i^j^not a sufficient objection to the award, ®at$>nhreets the.m|ney to be paid by him, who on his owm a"i"|i^<m'^ehalf of others, in nature of a surety wajMtWnd for Ui^pMhnent of it. The award, in directing Ijhat^l'^lsStm’^ay^he sum awarded, or cause it to be pai®^RoberL0mnstrong 8f Co. only directs that he shall do whaTbynm bond he bound himself should be done; and for the neglect or refusal to do which by the company, if the award had been that they should pay it, he would have been subjected to an action on the bond, and a payment of it would discharge the company from all liability to Robert Robinson Co., on account of the matters submitted to the arbitrators. The award therefore, is in effect the same as if it had been that Robert Armstrong fy Co. should pay.

Moreover, it does not appear from the record, (and the law does not presume it,) that there is any other person living than Robert Armstrong, belonging to the firm of Robert Armstrong fy Co.; or that Robert Armstrong and Robert Armstrong &f Co. are not one, and the same person. And in support of the award, it will be intended that they are; as if it was not so he must know it, and if material might have shown it, which he has not done. There is no objection therefore, either to the award, or the breach assigned. Robert Armstrong, as far as appears upon the record, being the only person from whom the money directed to be paid was due; and the award that he shall pay, or cause it to be paid, &c. being in effect, a direction that he shall pay what he himself owes. And if the award had been that Robert Armstrong Co. should paj, it would have been equivalent to a direction that he should pay.

JUDGMENT AFFIRMED.