Keep v. Goodrich , 12 Johns. 397 ( 1815 )

Spencer, J.,

delivered the opinion of the court. It is very clear, that Elmore did not act as the private agent of the defendant, in' adjusting the claim made on him by the plaintiffs. He made- a formal award between the parties, '"and- refused to act, the plaintiffs agreed to be bound also.' 'The eou-nt on an, insimul computassmt cannot be maintained, * .

• The real question is, whether the defendant is bound by the award, it appearingblearly in evidence, that the plaintiffs’ f-e-fused to be concluded by'it, up to the 3.8th of January, 1814, Subsequent to that time, the plaintiffs agreed to be bound by the award; but the defendant’s .agreement to submit to Elmore, -and to be bound by his decision, was on, or anterior to, the 8th of January, 1814; so that there was no point of time when, both parties,-bound themselves, by-agreement with each other, to submit their controversy to Elmore, and to be bound by his award. ' • ’ - - :

In Livingston v. Rogers, (1 Caines' Rep. 583.) it was decided, that in assumpsit on mutual promises, the declaration’must allege that they were concurrent. In that case, the promise^ was stated, “ and. that -in consideration the plaintiffs had, at the defendant’s request, promised to perform his part;. the -defendant, -afterwards, to wit, the same- day-, promised,” &c.' The court were of-opinion that the judgment ought to be arrested; but-there-being á good count, and a motion to amend, leave was given for that purpose, on payment of all the costs.

The only consideration, in this case, for the defendant’s promise, is the plaintiffs’ promise ; and it is alleged, in both counts on the award, -that the defendant’s promise was. made in cbnsideration of the-plaintiff’s promise, and both promises are’laid as -concurrent nets; and we have seen', that if'the promises were not alleged to have been made concurrently, it would have been good ground for arresting the judgment. .-’ It is a oeceSsaary.tonsequence, that the proof shquld support, this allegation in the declaration,, and show that, in point óf fact, the promises were considerations reciprocally for the parties, Here the proof negatives the fact, that the consideration of the defendant’s promise to submit and abide by the award of Elmore, was, that the plaintiffs frad, at the same time,', made the like promise; for it clearly appears, that the. plaintiffs -refused to submit and be bound by Elmore*s award, long after the defendant professed a. willingness to make the submission.

In Tucker v. Woods^* we recognised the’-principle that, in contracts where the promise of one.-party is the consideration .Cor the promise of the other, the promises must be concurrent and obligatory upon both at the same time; and, in addition to the case in Caines, 1 Chitty's Pl. 297., and 3 T. R. 653., were cited, which fully warrant the position. The same doctrine is contained in Paine v. Cave, (3 T. R. 148.) and in Kingston v. Phelps, (Peake's N. P. 227.)' The plaintiff proved that the defendant consented to be bound by an award to be made on a submission by other underwriters on the same policy, but the witness proved no agreement on the part of the plaintiff to be bound by the award. Lord Kenyon held, that there was no mutuality, and, therefore, the defendant’s agreement was a mere nudum pactum. It is correctly stated by Kent, J., in Livingston v. Rogers, that Hobart (88.) observes, that the promises must be at one instant; for, else, they will be both nuda pacta.

There must be a new trial, with costs to abide the event of the suit.

New trial granted.

* Ante, 190.