M'Kinstry v. Solomons , 2 Johns. 57 ( 1806 )

Kent, Ch. J.

delivered the opinion of the court. Ser veral objections were made to the declaration.

1. It was said that it does ' not appear that the arbitrators ever took upon themselves the consideration of the subject, prior to .the appointment of the umpire. But this was not necessary. The arbitrators may elect an umpire, within the time prescribed for them to make an award, and even before they take upon themselves the matter submitted., (4 Term, 644.) It is not even requisite, that the arbitrators should have acted in the matter, and made an effort to agree in order to give validity to the powers of the umpire. The submission, in this case, was, that if the arbitrators should not malee an award within the time limited, the umpire should act, and it is sufficient that they did not make an award. (Lurnly v. Hutton, 3 Viner, 92. Mitchel v. Harris, 1 Ld. Raym. 671. and 12 Mod. 512.)

2. It was urged that the award of the umpire was not final, because he states that the plaintiff had not only a just claim for the sum awarded, hut even more if insisted on. But payment and receipt of the specific sum awarded, is a final discharge to the defendant, and a waiver on the part of the plaintiff, of any further demand; a discharge to the defendant will be presumed from the payment of the sum awarded. (1 Caines, 319.) The award necessarily implies that any further claim on the part of th^plaintiffs had not been insisted upon, but was waived b&rore the umpire, and the acceptance of the award clearly concludes the plaintiff’as to further claims.

3. It was farther insisted that the award was not final, because the umpire directs, that should any errors in addition or calculation of interest be found in the account , and proof thereof be made by the defendant, the plaintiff shall refund the amount thereof. This does not open the merits of the controversy, and it has no analogy to the case of Padley v. Goddard, (7 Term, 73.) where the defendant was allowed to reduce the sum in-the award by' his own affidavit. It refers merely to clerical mistakes or miscalculations by the umpire in casting up or footing the accounts, and the provision is nothing more than what the court of chancery would do in every case of awards valid and final at law. 1 (3 Atk. 644.) It cannot affect the validity of the award, or render it less final than it would have been without it; and it certainly cannot lie in the mouth of the defendant to make the objection without averring and showing the mistake which could be ascertained by mere calculation.

4. It was again objected that it does not appear that the award was of and concerning the subject-matters submitted. This I think is, however, to be intended.— The umpire was appointed of and concerning the premises, and it is stated (hat he took upon himself the bur-then of the said umpirage, and made the award. The declaration does not indeed state that he made his umpirage of and upon the premises, but this is certainly the natural and reasonable presumption ; and notwithstanding the strictness of some of the older cases, with which Mr. Kyd (p. 139.) appears to be very justly dissatisfied, I tbinlc it ought to prevail until repelled by the opposite party. It is at. most but matter of form which cannot be objected to upon a general demurrer.

It is lastly said, that the award is not mutual, because no provision is made, for an indemnity against the claims of the deceased partner. Whether there would be .any weight in this objection if brought forward in another shape, it is unnecessary to say, because it is a complete answer to it in this case to observe, that in an action of debt upon an award, the plaintiff need only show so much of the award as is sufficient to state his demand. He need not show any more of the award than makes for him. He need not show the award on both sides; if there be any thing by way of condition precedent to the payment of the money, the defendant must set it forth in pleading. (1. Burr. 280. 2 Saund. 62. b. note, 5. and the precedent of the declaration in Hodsden v. Harridge, 2 Saund. 61.) The court are therefore of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.