Bowes v. French , 11 Me. 182 ( 1834 )

Weston J.

delivered the opinion of the Court.

The parties agreed to submit the demand, made by the plaintiff upon the defendant, to arbitration; and for that purpose executed under their seals an instrument of submission, which they acknowledged before a Justice; it being what is usually called a Justice’s rule. On the back of the instrument, also under the seals of the parties, is an extension of the liability of the defendant. The arbitrator, having made his award, the parties on the eleventh day of May, 1S33, by a writing under their hands not under seal, agreed and consented that the decision of the arbitrator, in the case between them, might be on that day opened and made known; and they further agreed to abide by said decision.

An objection is made to the form of the action, it being insisted that it should have been debt or covenant, and not assumpsit. To this it is replied, that the action is brought, not upon the instrument of submission, but upon the subsequent promise to abide the result. We cannot regard that promise as any thing more than a recognition of what they had before agreed, under their seals. It was founded upon no new consideration. It did not vary or extend the terms of the submission, nor was it applied to any new subject matter whatever. A parol or written promise to pay a bond, or fulfil a covenant, will not change the remedy of the party to whom made. The higher security remains in force, and the proper action, if not paid or fulfilled, is debt or covenant.

By the terms of the submission, the report was to receive the sanction of the Common Pleas. The defendant had a right to insist upon this condition. The plaintiff, however, had it not in his power to obtain this sanction, the submission not having pursued the statute, having been made to one arbitrator, instead of three. The intention of the parties might thereby be defeated ; but the acceptance of the report by the Common Pleas, was made a condition precedent to the liability of the defendant. If impossible, the judgment of the referee could not be enforced. But it is contended that this condition might be, and was, waived by the defendant. If it was, his liability to abide the award depended upon the submission, for which the appropriate remedy was debt or covenant.

In White v. Parkins, 12 East, 578, assumpsit was sustained upon an agreement, which formed no part of the charter party. It was a separate contract, covering a period, and embracing services, not provided for in the instrument under seal. So in Foster v. Allanson, 2 T. R. 480, the account settled between the parties, the balance of which the defendant expressly promised to pay, contained matter not included in the previous covenant. The note of Monrovia v. Levy, appended to that case, is very brief. It was at Nisi Prius, before Justice Ruller. The defendant had covenanted to account. He did so; and a balance was struck, which he expressly promised to pay. Upon this promise, Ruller J. sustained assumpsit; probably upon the ground that the covenant was fulfilled, when the party accounted.

Exceptions sustained.