Babb v. Stromberg ( 1850 )

The opinion of the court was delivered by

Gibson, C. J.

— The submission under the rule, and the parol submission at the meeting of the arbitrators, were distinct matters. The first had regard to a trespass: the second, to a boundary. That a question of boundary is a subject of arbitration, is plain upon principle as well as authority. An award is an act of the parties performed through their agents, and assented to in advance; and there is no reason why they may not as well establish, by-means of it, what is called, in common parlance,1 “a consentable line,” as by their immediate act. And the cases abundantly prove that an attorney is competent to bind his client; so that the question before the jury was whether the question of boundary had actually been submitted. The award of damages was under the first submission: the award of boundary, at the common law, was under the parol submission, and dependent on the written one for the right of appeal, by which both awards might be annulled. The spout was not within either submission, and the award was so far void. If there was a parol submission, the award of the boundary would conclude the parties in subsequent suits. The question was one of fact, and if there was any affirmative evidence whatever, it was proper to send it to the jury. The plaintiff was present in person at the meeting of the arbitrators, and the defendant was present by his attorney, who, wisely judging it better to have the controversy settled wrong than not to have it entirely settled, proposed that the “arbitrators might state a line, or recommend a line, and that, if the award was not appealed from, it might be binding on the parties.” He thought he was proposing to submit the whole matter, for nothing less could bind. No objection being made on the other side, the arbitrators reported a line-; and as no appeal was taken, the award would, on the terms proposed, become absolute. Now, it is not pretended that there.. was, in this, an explicit submission expressly offered and accepted; but a parol submission, like any other parol agreement, depends on the assent of the parties ; and it may be signified by acts as well as words. The defendant’s attorney certainly proposed an additional article; the plaintiff did not object to it; and the arbitrators proceeded on the basis of it. To say nothing of acts of confirmation, there was enough in this to send the question to the jury. The record was competent to lay a ground for evidence of subsequent submission; and the cause was in all respects properly ruled.

Judgment affirmed.