Orcutt v. Butler , 42 Me. 83 ( 1856 )

Appleton, J.

The parties, Orcutt and Butler, having agreed to submit “ all demands of every description, and all controversies now existing between the parties,” to the determination of certain referees, the defendant Butler gave the plaintiff a bond with surety, the condition of which is, “ that if the said Butler shall abide by the decision of said referees, and pay all sums of money that may be awarded against him to the said Orcutt, within thirty days from the publishing of said award, then, this obligation to be void, otherwise to remain in Ml force and virtue.”

The referees awarded that “the said Leman S. Orcutt recover against the said William Butler three hundred and sixteen dollars as damages; said Orcutt to have the privilege of taking off the crops raised on said Butler’s place the last season, and to pay the costs of reference, taxed at twenty-six dollars and ten cents; the conveyance heretofore made by said Orcutt to Samuel Wasson is to be valid, the consideration for the same having been allowed to said Butler.”

The award having been duly published, the plaintiff seeks in this action to recover damages for its non-performance. To this the defendants object, on the ground that the referees have exceeded their authority, by embracing in their award matters not submitted, and that consequently the same is void.

The submission is most general in its terms. It includes “ all demands of every description, and all controversies between the parties.” It was held in Munroe v. Maine, 2 Caines, 320, that a submission of matters of the realty and of “ divers other matters,” was equivalent to a general submission of all questions and controversies between the parties, and that under it general releases might be awarded. In Noble v. Preble, 13 Serg. & Rawle, 319, the Court held that a submission “ of all business of whatever kind in dispute between the parties” included prosecutions for assaults and batteries. In the present case it is difficult to perceive what was properly excluded from the consideration of the referees.

It has been determined by a series of decisions that an award may be good for part and bad for part. The Court will sustain the part which is good, if it can be so disconnected from the remainder of the award, that no injustice shall be done. Banks v. Adams, 23 Maine, 259; Boynton v. Frye, 33 Maine, 216. “An award,” says Woodworth, J., Cox v. Tagger, 2 Cow. 633, “ may be good in part and void in part, when the part, which is void is not so connected with the rest as to affect the justice of the case. It is then void only pro tanto.”

That portion of the award relating to “the conveyance heretofore made” to Wasson, is vague and indefinite. This conveyance is declared valid, “the consideration for the same having been allowed to said Butler.” This may have been one of the matters in controversy between the parties and therefore properly considered. But whether that be so or not is immaterial. It is sufficient that there is no connection between this portion and the residue of the award. The damages do not relate to the Wasson conveyance, and are obviously separated from it.

The award clearly and definitely specifies the damages, and costs of reference, for which the plaintiff is entitled to recover. To so much of the award there can be no legal objection.

From the award it would seem that the plaintiff was entitled to the “crops raised on said Butler’s place,” and that he was to have “the privilege” of taking them off. This obviously refers to annual crops. The plaintiff having the privilege of removing them, is entitled to"a reasonable time within the year in which to remove them. If they have been removed and the plaintiff has received them, he has no cause of complaint. If the defendant Butler has prevented the plaintiff from removing them within the year, and has appropriated them to his own use, he is liable 'in damages for their value.

Defendants defaulted.

Tenney, C. J., and Hathaway, May and Goodenow, J. J., concurred.