Sawyer v. Freeman , 35 Me. 542 ( 1853 )

Sheplet, C. J.

— The suit is upon an award made by virtue of a submission contained in the condition of a bond, which recites, that “ differences have arisen and are now depending” “concerning the earnings and expenses of the schooner Orizaba” “ from the commencement of her first voyage to the present time;” “ which differences and all demands concerning the same, and all actions, causes of action, judgments, executions, controversies, and demands, whatsoever, at any time heretofore commenced, prosecuted or depending, for or between the said parties, for or by reason of the matters above mentioned, the said parties have agreed and by these presents do agree to refer.”

There are many comprehensive words used, but they are all restricted by other language to the differences “ concerning the earnings and expenses.” When the words all demands are used, they are limited to all concerning the same; and the word same has relation to the word differences and not to the vessel. So all actions, causes of action, controversies and demands whatsoever, are limited to those arising for or by reason of the matters above mentioned.

It appears from testimony introduced by the plaintiff, that “ the referees took into account a certain insurance of the freight of the schooner Orizaba, charging the defendant about $300 therefor, in making up their award.”

The plaintiff and other persons parties, to the submission, were part owners of that vessel. The defendant had agreed to navigate her for one half of her net earnings. He does not appear to have been authorized by the contract or otherwise to make any insurance for the other owners. By virtue of his being a part owner, or the charterer of the vessel, he had no authority to cause insurance to be made. Finney v. Fairhaven Ins. Co. 5 Met. 192.

Neither the premium paid, nor the amount received for insurance of freight, could properly be considered as comprehended by the terms earnings and expenses.

In the case of White v. Mann, 26 Maine, 361, the amount received for insurance was held to be included in “ all net earnings and profits,” as those terms were used in that contract only, because the contract provided for the payment of them “ after deducting insurance and charges of every name and kind,” thereby showing, that it was the intention of the parties to the contract, that insurance should be made on account of all interested and carried into the account.

The decision of arbitrators, that a matter does come within the terms of the submission, cannot be conclusive of the fact. If it could, all matters would be included, which they pleased to consider to be so, however at variance with the terms of the submission and contrary to the intention of the parties to it.

When the amount, included in an award by excess of authority, cannot he ascertained and separated so as to leave the rest part unaffected thereby, the whole award is void. Boynton v. Frye, 33 Maine, 216.

The arbitrators having exceeded their authority by deciding upon the claims of the other part owners to share the amount received for insurance upon freight, and having included the same in their award, and there being no means by which the amount so awarded can be separated from the remainder, the whole must be considered as void.

Plaintiff nonsuit.

Tenney, Rice, Appleton and Hathaway, J. J., concurred.