Hand v. President of the Town of Columbus , 12 Miss. 203 ( 1845 )

Mr. Justice Thachee

delivered the opinion of the court.

This was an action in assumpsit, in the circuit court of Lowndes county, to enforce an award. The case is brought up on a bill of exceptions to the ruling of the court below. The evidence in the cause is all set out in the bill of exceptions, and it does not therein positively appear that the board of selectmen of Columbus officially authorized its president to submit the matters in difference to award,- nor that a majority of them, in any mode, subsequently ratified it; nor does it - at all appear that the defendants agreed to the submission. Upon this evidence the court below charged the jury that if the members of the board approved the submission, and signified in conversation such approval to their president, that was sufficient, no written order or action of the board being necessary. As the record shows the evidence, this charge, we think, was erroneously given, because it was calculated to mislead the jury. Although it appears that some of the members of the board conversed upon the subject of the award, and assented to it, it is by no means clear that a majority of them did so, and the approval of the whole board, without proof of a submission on the part of the defendants below, would not have been sufficient to warrant the finding by the jury.

The judgment of the court below is therefore reversed, and the case remanded for further proceedings.