Woodbury v. Northy , 3 Me. 85 ( 1824 )

Mellen C. J.

at the succeeding term at Augusta, delivered the opinion of the Court.

In this, as in other actions of assumpsit, the general issue is a denial of all the material facts stated in the declaration, and renders it necessary for the plaintiff to prove them. On this issue, then, the defendant may contest the fact of submission, — of making the award, and of notice thereof prior to the commencement of the action; because all these facts are necessary to create an obligation on the part of the defendant to pay to the plaintiff the sum awarded. Hence it was competent for the defendant to prove any fact tending to shew that the arbitrator was not authorized to make the award in question, although the submission had been proved as alleged; and for this reason the objection to the testimony of the arbitrator cannot be sustained, at least so far as it related to the time when, and the circumstances in which, the award was made. The question is whether the arbitrator had any authority to make the award declared on, bearing date April 7, 1823. It appears (hat pursuant to the submission bearing date Jan. 12,1822, the arbitrator made an award on the 4th of March, 1822, delivered it to the plaintiff 's counsel, and addressed notice of it to the defendant, though there is no proof that it was ever received; that the arbitrator considered himself discharged of all further trust, and conversed with the plaintiff and his counsel freely on the subject; and as he thinks, expressed his ópinion that the defendant was in the wrong.

It further appears that the plaintiff considered the arbitrator as having made his final award, because he commenced an action on the award of March 4, 1822, at the August term of the Court of Common Pleas next following; and it was admitted by the parties during the argument, that for want of proof of notice to the defendant of the award thus made, the suit was discontinued.— After all this, the submission was handed back to the arbitrator in March 1823, who, after having given notice to the parties, proceeded, in the absence of the defendant, to re-examine the cause, and made the award on which this action is founded, and therein awarded eight dollars more to the plaintiff than the amount of the former award, being for costs of the second trial. On these facts, it is difficult to conceive what authority the arbitrator had to make any further decision respecting the questions submitted to him, after he had completed his first award, and delivered it to the plaintiff’s counsel. No consent of parties has ever been given for the continuance and exercise of his authority after that time. The authorities on this subject appear to leave no room for doubt. Cro. Jac. 584. 4 East 584. 6 East 309. 8 East 53, and Kyd on Awards 118 — 125. On this ground,without noticing any other objection, we are of opinion, that the last award is void, and of course this action cannot be maintained.

The exceptions are overruled, and the judgment of the Court below is affirmed.