Thompson v. Mitchell , 35 Me. 281 ( 1853 )

Shepley, C. J.

— The suit is upon an arbitration bond. The plaintiff must prove, that an award in writing was made and published in conformity to the requirements of the condition of the bond. One was introduced signed by two of the arbitrators, and objection is made, that it does not appear of record that all three of the referees were present at the hearing.

It is stated in the award, that all of them met and heard the parties ; and that is sufficient.

Another objection is, that it was not delivered or published in writing. The condition of the bond in this case did not require, that the award should be delivered to the parties. In the cases cited in a note to 1 Saund. 327 a, the conditions did require, that it should be ready to be delivered to the parties before a certain day.

The condition of this bond required, that it should be made and published in writing within sixty days after the • hearing of the parties. The meaning is, that the award should not only be made in writing, but the parties should be enabled to obtain a knowledge of it in writing. Not that they should in writing be informed, that an award had been made and that it was subject to their examination.

The three referees were examined as witnesses. The fair conclusion from their testimony is, that at the conclusion of their duties, on or about Jan’y 21, 1850, an award was drawn, which was signed by all of them, that their chairman retained it, and subsequently drew a duplicate of it, and signed it, and transmitted by mail with the other to the other referees. That one of the others only signed that duplicate, which was produced at the trial.

The referee, who last signed the duplicate, more than a month after the hearing, states, that the defendant was present and paid the fees of the referees; and that he had before, on the morning after the award was made, informed him of its contents, as nearly as he could recollect them. He presumes that he did not recollect all the contents. This is but an opinion formed at the time of the trial and long after the transaction. It is not very probable, that on the morning after their report was made, he would from want of recollection omit to inform him of all the material parts of the award. He also states, that he told them to the plaintiff’. When the duplicate was signed, the defendant “ asked for our copy of it, which was not given to him,” says one of the referees. It does not appear, that he might not then have read it, had he desired to do so.

It appears to have been withheld, because two of the referees desired to have some alterations made in the award ; and because the plaintiff’, when its contents were made known to him, declared that he would not pay the seventy-five dollars awarded against him, and threatened, that he would follow the defendant as long as he had a dollar.

It was stated in the case of Knowlton v. Homer, 30 Maine, 552, that an award would be considered as published when the parties were informed, that it was within their reach on payment of the charges. This must be understood, when the condition of the bond is like the present, to mean when they are legally entitled to it, or to examine and read it. If it should be wrongfully withholden from them, after the referees had fully performed their duties, had made up and signed their award and communicated it to them, its validity would not be thereby impaired.

In this case it is evident, that the chairman intended that the award should be binding. He states, that a proposition was made to alter it, and that he proposed an alteration with respect to cost, which was never decided upon, and that he came to the conclusion, that it would not be safe to alter it. The duplicate appears to have been transmitted to the other referees for signature and delivery with the award first signed. Another referee states, that he informed the third, that he had better deliver the awards to the parties. Subsequently he authorized that one to do as he pleased about delivering them.

When referees have fully heard the parties ; have made up and signed their award ; and have communicated its contents to the parties, their duties are closed, and they have no power to alter it or to destroy its effect by a refusal to deliver it or by an attempt to recall it. Brown v. Vawser, 4 East, 684; Henfree v. Bromley, 6 East, 309; Irvine v. Elnon, 8 East, 64; Oliver v. Collings, 11 East, 367; Woodbury v. Northy, 3 Greenl. 85; Aldrich v. Jessiman, 8 N. H. 516.

They have nothing to do with its execution or performance, and any attempt to vary it, because one of the parties improperly refuses to perform and threatens the other, is unauthorized and vain.

The plaintiff appears to have obtained the award from one of the referees, very improperly, by a misrepresentation, but that cannot, if he be otherwise entitled, destroy his right to maintain the action. He might have left it in possession of the referee and have summoned him to produce it on trial.

It is insisted, that the defendant is not bound by the award, because the plaintiff has refused and neglected to perform his part of it. So far as performance by one party is made by the award to depend upon performance by the other, the objection would be good. It could not have been the intention to require the defendant to repay the consideration received for a conveyance of one fourth of the patent right, without obtaining a reconveyance of it; or to make the plaintiff pay to the defendant seventy-five dollars more without being relieved from the payment of any part of that consideration. Nor will a fair construction of the award require any such result. The re-conveyance has been tendered, and the defendant, if required to pay to the plaintiff the amount of the consideration received, can, in a hearing in equity, have the seventy-five dollars deducted from the amount, for which execution should issue.

It is insisted, that a demand should have been made before the commencement of the suit. When an award is made for the payment of money unconditionally, the' party becomes liable to pay upon publication of the award according to its terms, without any demand. Parsons v. Aldrich, 6 N. H. 284; Nichols v. Renssellaer In. Co. 22 Wend. 125. The amount for which execution should issue, will be determined on a hearing in equity. Defendant defaulted.

Wells, Howard, Rice and Hathaway, J. J., concurred.