Boor ex rel. Hall v. Wilson , 48 Md. 305 ( 1878 )

Brent, J.,

delivered the opinion of the Court.

This is an action upon an award. The defendant among other defences, alleges in his fourth and fifth pleas that the arbitrators did not before making their award appoint any time for hearing the defendant and his witnesses, and proof touching the matter referred, and that the arbitrators refused to appoint any such time, although requested so to do by the defendant. Upon a demurrer to these pleas the case was brought up to this Court, (40 Md., 483,) and it was then held that the pleas were good, and ought to have been allowed. The Court also says in its opinion, “if the submission by its terms has dispensed with notice, or the necessity of adducing testimony, of course no such defence could be made.”

When the case came back for a new trial, the plaintiff to avail himself of this part of the decision, filed to these pleas his second, third, fourth and fifth replications. Issue was taken to the second, fourth and fifth, and a demurrer entered to the third. This demurrer being sustained, presents the first subject-matter of appeal.

While the third replication may be objectionable upon the ground of informality, it is not necessary to pass upon this question, as the points sought to be presented by it are sufficiently raised by the second, fourth and fifth replications, to which issue was taken.

It is but an amplification of them, and the ruling of the Court upon the demurrer has not injured the plaintiff, or narrowed his cause of action. The second and fourth replications present the question, whether the notice set out in the pleas had or had not been waived, or was unnecessary by and under the agreement of submission. And the fifth, replication, whether the defendant by his presence before the arbitrators, and by his acts, had not waived it. Under this state of the pleading, the plaintiff had the right to ask of the Court instructions upon the construction of the agreement of submission, and upon the facts, as fully as he could have done, had the demurrer to his third replication been overruled.

As this case will be sent back for a new trial, before leaving the questions arising upon the pleading, we will dispose of the demurrer to the defendant’s tenth plea. We concur with the Court below in its ruling upon this demurrer. ' The tenth plea is in every respect bad. It is no answer to any of the counts in the narf., but seeks to avoid the responsibility of the defendant by setting up matters wholly extrinsic, and outside of the agreement and award as declared upon.

The theory upon which this- case seems to have proceeded, is that the award is invalid, because at the time the arbitrators went upon the land to view it, there were no articles of submission before them, and they were only informed by parol what duties had been imposed upon them by the submission. We have not been referred to any authority in support of this view, and cannot give it our sanction. The true question is, whether the parties under their hands and seals have submitted the matter in dispute to arbitration, and whether tbe award of the arbitrators is in strict conformity to the articles of submission. If both of these essential facts appear affirmatively, it is of no importance whether the arbitrators were informed only verbally of the contents of the agreement of submission, or whether the paper was actually before them or not in their proceedings to make out their award. Now in this case the parties agreed, under their hands and seals, to submit to certain arbitrators mutually chosen, with power to select an umpire, the valuation of thirty-five acres of land specially designated and pointed out in the very terms of the agreement. This duty they seem to have performed, and by their award have placed a valuation upon the very land mentioned in the submission to them. The facts show that both the submission and award were in writing. It is true they are lost or mislaid. But their contents have been supplied by secondary evidence. These papers ought to have gone to the jury, and we see nothing in the proof in this record to destroy their effect. Certainly nothing which requires the Court to take the case from the jury, and to instruct them “that there is no sufficient evidence in the cause from which they can find a verdict for the plaintiff.”

The submission and award in this case are for the purpose of ascertaining the whole deficiency in value of a tract of land falling short in the number of acres, which the vendor and vendee, at the time of its sale and purchase, supposed it to contain. There is some proof to show that fifty dollars had been paid to the vendee, prior to the submission and award, on account of such deficiency. If the jury is satisfied from the proof before them that this is so, that amount ought to be allowed as a payment of so much on the amount of the deficiency ascertained by the arbitrators. There is nothing in the agreement of submission to estop the defendant from claiming this credit. The question of the amount to be allowed for the deficiency in the land, and not payment, was the matter submitted.

This case was tried in March, 1877. There can be no doubt that the Act of 1876, ch. 398, amendatory of the law of set-off, is applicable to it. But the defendant to obtain the benefit of that Act, in so far as to be entitled to a judgment in his favor, must put himself in a position to do so by proper plea. The familiar rule of pleading is, that a party can recover only to the extent of his claim. The eighth plea is the single plea of set-off filed in this case. In this the defendant has limited his demand to an amount equal to the plaintiff’s claim. It is the old plea of set-off, which went alone to the extent-of the plaintiff’s claim proved, and to that extent the present plea is limited by its terms. Upon a proper amendment the defendant will be entitled to all the benefits of that Act. Nor will the fact, that the case is entered to the use of another, affect this right. The judgment, if one should be obtained by the defendant, will be against the legal plaintiff alone. The party, for whom the use is entered, will be in no manner responsible for its payment; — bis only liability0 being under the law requiring him to answer for the costs in the case.

(Decided 26th March, 1878.)

It follows from what we have said that the two prayers offered by the plaintiff were properly rejected. And so also the prayers of the defendant numbered from one to seven inclusive. The eighth prayer, in regard to fraud and misrepresentation, is wholly unsupported by proof and could not have been granted. The ninth prayer introduces matters irrelevant to the question submitted to the arbitrators, and their refusal to hear testimony, in regard to such matters, can in no way affect the validity of their award. This prayer was therefore also properly rejected.

The tenth prayer.of the defendant we have already said was improperly granted. Eor this reason the judgment will be reversed and the case remanded.

In regard to the defendant’s first bill of exceptions, it is only necessary to say, it is taken from a matter in the discretion of the Court, from which no appeal lies.

Judgment reversed, and new trial ordered.