Rhodes v. Hardy , 53 Miss. 587 ( 1876 )

SIMRALL, C. J.,

delivered the opinion of the court.

We are inclined to the opinion that the submission intended that the award should be made between the fourteenth day of September and the 25th of the following December; because the latter day is appointed as the last on which the sum awarded, if any, shall be paid. If what was done by the arbitrators and the umpire on the 14th of September was final, it was within the time limited, and the plaintiff ought to have recovered. If it was not final, but adjourned one of the questions submitted, then the arbitrators have lost power over the subject, and a subsequent decision would be invalid.

Two questions were submitted: First, How much money, on the dealings between Rhodes and Hardy, was due from the former to the latter? and, secondly, Whether the contract out of which the alleged indebtedness grew was legal or not?

It is recited in the addenda to what purports to be the award that Hardy sold cotton to Rhodes in the early part of 1863, in Marshall County, knowing that Rhodes was buying to carry into Memphis, and there sell it, that city being then in possession of the Federal military forces. Watson and Featherston, the arbitrators, not being able to agree, called in Walter as an umpire. The three signed and sealed a paper to the effect that Rhodes should pay Hardy $416.23 in gold. But, written on the same paper, at the same time, is another writing, called “ addenda,” reciting that Hardy sold the cotton, knowing that Rhodes was buying for the Memphis market, that city then being occupied by the Federal army. It continues in these words: “ If we become satisfied that in law Hardy cannot recover under such a contract, this award is to be changed, and an award given that neither party is entitled to any recovery from the other,” &c.; which was also subscribed and sealed by the arbitrators and the umpire.

Opposite views of this writing have been presented by counsel. One is, that, being contemporaneous with the other, it is part of the award, as much so as if incorporated in it; and, thus considered, it takes from the award the essential characteristic of finality. The other is, that, after the award had been made, the arbitrators and umpire attempted to reserve the right to reconsider one subject, and announce a different conclusion, if they saw proper to change their minds.

Whatever is written on the same paper, whether on the margin or underneath the award, if done at the same time, constitutes a part of the award, as much so as if included in the body. Cameron v. Castleberry, 29 Ga. 495; Platt v. Smith, 14 Johns. 368. Baldwin v. Jenkins, 23 Miss. 206, 210, in principle is to the same effect. The “ addenda,” then, must be read as part and parcel of the award. Construing both together, was there, on the 12th September, 1866, a final decision of all the matters submitted? It is essential to the validity of an award that it shall be final and complete, responsive to all the matters of difference included in the submission. On the question of finality, it was aptly said, in Colcord v. Fletcher, 50 Me. 398, the award is final when “ nothing further remains to fix the rights and obligations of the parties, and no further controversy or litigation is required or can arise on the matter.” “ The party against whom it was made can perform or pay it, without any further ascertainment of rights or duties.” Not only must the award be complete in every point, but it must be put in this perfect shape once for all. Morse on Arbitration and Award, 388. The books abound in cases illustrating the principle. Thus the award was that A. should clean out a stream; if B. was not satisfied that it had been properly done, there should be a further hearing on that point before the arbitrators. This reservation of further authority vitiated the award. Morse on Arbitration and Award, 388, 389. In Carter v. Calvert, 4 Md. Ch. Decisions, affirmed in 6 Md. 141, the award failed, because the amount to be paid one of the parties “ was to depend upon the result of an account to be taken thereafter.” This was the reservation of the future power of the arbitrators, which affected the entire award. McCrary v. Harrison, 36 Ala. 577, 580, is very analogous to this case. There the conclusion reached, after examination of the papers, was expressly made subject to future alterations, on suggestion of errors by the parties. The matter remained sub judice. Such reservation of authority by the arbitrators is inconsistent with the idea of an award. Watson on Awards, 216, 230.

Taking the entire award as set forth in the two writings together, and this would be a fair statement of it, viz., we (the arbitrators) are satisfied that Rhodes is indebted to Hardy 1416.23, to be paid in gold coin; and as we are advised this day, the 12th of September, of the law applicable to the transaction, we are also of opinion that the contract is legal; but since that is a doubtful question, we reserve authority to look further into it, and to revoke this decision, and make a different one, if we shall discover hereafter our error.

If that reservation could be made the next day, or week, or month, they might have revoked the award in favor of Hardy, and have decided that Rhodes should pay nothing. Manifestly the award was not final. Such was the view of the arbitrators for seven years afterwards. In 1873, they sign and seal another statement affirming their former decision, and declaring it final.

Without considering the other questions which have been raised and argued by counsel, we are satisfied the award is invalid in this particular, and for the reasons assigned.

Judgment reversed and a new trial awarded.