Deering v. City of Saco ( 1878 )

YiegiN, J.

The defendants contend that a specific demand only was submitted, and that it was not signed by the plaintiff as required by R. S., c. 108, § 2.

Our opinion is that the demand was specified in the submission itself, wherein the parties declare that, they “ do hereby submit all demands, claims and accounts which the said William H. Deeding has against said city of Saco, on account of the construction of said G-ooch street bridge, or growing out of or resulting from the same in any way, to,” etc.

The “ original bill ” presented by Deering to the city, Dec. 7, 1874-, a “ true copy ” of which is certified by the city clerk, was not intended by Deering nor understood by the defendants, to be the demand submitted. That was simply “for labor and materials furnished in building the bridge.” It came into the case as a part of the record of the city government and not as a demand annexed to the submission. Whereas the claim submitted included much more. And as the demand submitted is specified in the submission and the submission is signed by ihe plaintiff, the demand is signed.

If this were doubtful, the defendants knew and fully understood at the hearing before the referees that, no specific demand signed by the plaintiff was literally annexed to the submission ; and we have the high authority of Whitman, C. J., in Harmon v. Jennings, 22 Maine, 240, 242, for declaring that the question not having been raised before the referees, it cannot be entertained now. See also the recent case of Raymond v. Co. Commissioners, 63 Maine, 110, which we think is decisive of the principle involved in this objection.

The second objection is that, the plaintiff having been one of the aldermen of the city of Saco when he made and performed the contract, the award in his favor is iij contravention of R. S., c. 3, § 29. This fact was pleaded before the referees. The parties voluntarily dismissed their action from the docket of the court, and selected another tribunal to which they submitted the whole subject matter of contention, both law and fact.

The submission contained no restriction upon the powers of the referees. The referees save no question for the court to decide ; but they have done what they were selected by the parties to do, decided the whole case. Whether they have decided the law of the case as it would have been decided by the court, we have no occasion to inquire. It is sufficient for us to know that the parties make no suggestion tending to impugn the integrity of their tribunal, which unanimously arrived at the conclusion promulgated by their award.

This rule is sustained by numerous decisions of this court, among which are Portland Manf. Co. v. Fox, 18 Maine, 117. Brown v. Clay, 31 Maine, 518. Morse v. Morse, 62 Maine, 443. Mitchell v. Dockray, 63 Maine, 82.

Exceptions overruled.

AppletoN, C. J., Walton, Barrows, Peters and Libbey, JJ., concurred. ■;