Gardener v. Oden , 24 Miss. 382 ( 1852 )

Mr. Chief Justice Smith

delivered the opinion of the court.

This was a writ of error to the circuit court of Kemper. The action was founded on a bond given by Gardener and Jack, conditioned for the faithful performance of an award of arbitrators of certain matters to be submitted to them by the said Gardener and John H. Oden, the defendant in error. The award was made, and the suit was for the recovery of damages arising from an alleged breach of the bond.

The breaches assigned by the plaintiff were, 1st. That the defendant had not released to plaintiff the interest which he possessed in certain partnership property designated in the award. 2d. That defendant had brought an action against plaintiff for certain sawed lumber, which was part of the partnership property, and was embraced in the award of the arbitrators.

The objections urged as ground for a reversal of the judgment, refer to the ruling of the court in regard to the admission and rejection of evidence offered on the trial. 1. It is said the court erred in permitting the award to be read in evidence to the jury. It did not appear to have been made by the arbitrators named in the bond. The objection came too late. The award was set out in the replication of the plaintiff; to which the defendant rejoined, averring the performance of the same. The award, therefore, could not be objected to on the ground of variance.

2. It is contended that there was error in allowing the record of a certain suit, theretofore pending in the said court, wherein the defendant Gardener was plaintiff, and the said Oden was defendant. We are unable to perceive wherein the error complained of exists; for most assuredly a suit brought against Oden individually for the recovery of property of his wards in his possession, and which had been settled by the arbitration, might be a breach of the condition of the bond.

3. In the next place, it is objected that the testimony of Scott, Mitchell, and Boyd, was improperly rejected; they were of the arbitrators who returned the award, and their testimony was offered to prove that the lumber sued for by Gardener, in the action above referred to, was not a part of the partnership property submitted to their arbitration.

The issue before the jury upon the second breach assigned was, that the defendant had brought an action in violation of his bond, against the plaintiff, for the recovery of partnership property settled by the award. Hence the admissibility of the evidence ruled out by the court, depends upon the question how far the defendant was concluded by the terms of the submission. The adjudications of the courts on this subject are conflicting. In the States of Maine, New Hampshire, Massachusetts, and, probably, in Kentucky, the award is merely conclusive of the matters actually laid before the arbitrators. Hence, in each of these States, it is competent to show by parol or other competent evidence, that the particular demand sought to be barred was not the subject of consideration by them. Whittemore v. Whittemore, 2 N. H. R. 24; Bixby v. Green, 5 Greenl. R. 192; Webster v. Lee, 5 Mass. R. 334; Hodges v. Hodges, 9 Ib. 320; Smith v. Whiting, 11 Ib. 445; Engleman’s Executor v. Engleman, 1 Dana, 437.

In New York, it has been held that an award upon a submission of all demands, is conclusive of every thing constituting a demand on either side existing at the time of the submission, and evidence to show that any particular demand was not before the arbitrators, nor passed upon by them, was inadmissible. Van Howten v. Wheeler, 12 Johns. R. 311; Dr. Long v. Stanton, 9 Ib. 38; 15 Ib. 197. The rule on this subject, in England, corresponds with the decision in New York. Smith v. Johnson, 15 East, 213.

The submission in the case before us, was of all demands and accounts arising in the partnership business between the parties, and of the disposition of the partnership property. The sawed lumber, it is clear, was embraced by the terms of the submission. We think, therefore, the testimony should have been excluded. It would be unjust in this instance, if not dangerous as a precedent, to allow the defendant, on a submission which clearly embraced the whole partnership property, and which was intended to settle every thing between the parties connected with the partnership, to insist that a part of that very property was not embraced by the award; and that, too, after the terms of the award were fully complied with by the other party to it. The object of the submission was to avoid litigation; such a precedent would encourage it.

Let the judgment be affirmed.