Prescott v. Fellows , 41 N.H. 9 ( 1860 )

Doe, J.

In an action upon an award, although the submission is not under a rule of court, a court of law may determine such questions touching the validity of the award as we are called upon to consider in this case. Boston Water Power Co. v. Gray, 6 Met. 162 ; Strong v. Strong, 9 Cush. 560 ; Barrows v. Capen, 11 Cush. 37 ; Shearer v. Handy, 22 Pick. 269 ; Mitchell v. Stanely, 16 East 58 ; Tudor v. Scovell, 20 N. H. 171; Chase v. Strain, 15 N. H. 535.

If a submission is general, without restriction as to the principles upon which the referees are to decide, they may decide upon legal or upon equitable grounds; but if they are limited by the submission to legal or to equitable considerations, they must make their award by the rule prescribed. Johnson v. Noble, 13 N. H. 286.

In Greenough v. Rolfe, 4 N. H. 357, where the submission required the referees to proceed “upon just and legal grounds,” it was beld that they were to decide according to law. But we cannot presume that the parties in this case intended to submit tbeir rights to a mere legal decision. They seem to have supposed their controversy susceptible of adjudication on moral grounds, with a result different from that based on purely legal principles, and to have intended to require the referees to consider the law and the equities of the case, and, duly examining the subject in the two different modes, to make an award modified by either or both, as on the whole they should think most reasonable. The submission appears to require the referees to investigate the case in different methods and various lights, rather than finally to decide it according to any particular rule. They might, after determining the mere legal rights, have made such an award as, in equity and good conscience, should have seemed to them right. They evidently made a different award, because they supposed themselves bound to decide according to law. The award shows that they unwillingly held the defendant to his strictly legal obligations, and that there was a “ moral bearing of this matter” which would have led them to a different conclusion, had they considered themselves at liberty to regard it. By an erroneous construction of their authority, they were compelled to make a decision which they obviously deemed inequitable. Their action did not conform to the submission, and their award is void. White Mountains Railroad v. Beane, 39 N. H. 107.

Judgment for the defendant.