Perit v. Cohen ( 1839 )

The opinion of the Court was delivered by

Kennedy, J.

— As to the first bill of exception; we are clearly of opinion that the plaintiff in error, the defendant, below, was entitled to have the question answered, which, by way of cross-examination he propounded to Mr. Brown, the witness produced by the plaintiff below, to prove the submission and award set forth in his declaration; and upon the establishment of which, his right to recover depended. The object of the question by .the defendant, was, to ascertain from the witness, whether the submission of which he' spoke in giving his evidence in chief, had not in effect, been terminated or put an end to before the award, of which he also testified, was made. Now it is perfectly obvious, that the award was a mere nullity, or in law no award at all, unless a submission authorising it, was in force or being at the time it was made. The claim of the plaintiff below therefore, rested entirely upon the fact of such an award having been made, as he alleged, that is, one made in pursuance of an agreement of submission, existing between him and the defendant below at the time. This was part of the allegata on his part, and therefore, to entitle him to recover, he was bound to sustain it by his proofs. Having given evidence accordingly by the witness, which, without more, went to prove that the writing, purporting to be an award, was made in pursuance of an agreement of submission in force at the time of making the award, he could with no propriety or colour of reason after closing his examination of the witness in chief, object to the defendants, asking such questions of the witness as would tend to elicit evidence from him, showing that the submission, of which he testified, as having been made, had been put an end to, before the making of the award; and consequently the award was made without any submission, which authorised it. The question then, put by the defendant, if answered, as he expected, by the witness, would have produced evidence going to repel the inference arising from his evidence in chief, that the award was made under the authority of the agreement of submission which he testified was made, and thus have rendered his testimony in chief of no effect, and have left the plaintiff without any proof of a submission, which authorised the making of. the award; and without which, it was impossible for him to sustain his action. The question was therefore not only material, but peculiarly appropriate to be put by the defendant, to the witness on his cross-examination of him. Suppose the plaintiff below had brought his action to recover the amount of a note, drawn by the witness as the agent of the defendant, for a certain sum of money, payable to the plaintiff, and had, on the trial, produced the witness to prove the drawing of the note, and his authority for doing so, and that the witness had testified upon his examination in chief, that he drew the note and delivered it to the plaintiff, under an authority given to him some time previously by the defendant. Can .it be doubted, that in such case, it would be proper for the defendant,, on his cross-examination of the witness, to inquire of him whether he had not surrendered that authority to the defendant, or the defendant had not revoked it before the drawing of the note; and whether this was not all known to the plaintiff at the time of his receiving the note 1 It would seem to be impossible to raise even the shadow of a doubt, as to the propriety of putting the question in the case supposed; and yet it is precisely parallel with the case before us, the object of the question being to show that the authority, which the witness testified he had given to him, had ceased to exist in either case, before he undertook to exercise it. The evidence rejected by the Court below and mentioned in the first bill of exception, does not therefore fall within the rule laid down in Ellmaker v. Buckley.

Then in regard to the second exception; we also think that the Court below fell into an error in rejecting the evidence, under the impression, it would seem, that the witness was incompetent, or could not be required to give it, because he acted as an arbitrator in making the award upon which the plaintiff relied for his recovery against the.defendant. The Court seem to have taken up the idea, that the evidence, which the defendant proposed to give by the witness, tended to impeach the propriety, if not the integrity of his conduct, as an arbitrator. This, however, I think, was a misapprehension ; for the evidence offered to be given by him, instead of going to show that he acted improperly as an arbitrator between the parties here, would have shown, if it had been given, that he in fact was not an arbitrator at the time, and had no authority from the parties, to act as such; and that, though he had had such ■authority some time before that, yet he with the other gentleman upon whom it was conferred, after making an attempt to execute it, but unable to do so, had surrendered or given it up again to the parties; who thereupon had a right to consider the submission as terminated, and no longer in force. The evidence therefore proposed to be given by the witness, was not ■ liable to the objection made to the examination of an arbitrator in Ellmalter v. Buckley, and sustained by this Court. Here, Mr. Brown, the witness, was produced by the plaintiff below, to prove that he was an arbitrator between the parties, mutually chosen by them as such, and that as such he joined in making the award. Nowif hewas competentto prove these facts for the plaintiff, why should he not be equally competent to disprove them in effect for the defendant. This would have been the legal effect of what the defendant proposed to prove by him. I do not know that it was ever questioned, that a person who acted for another as his agent, might not be called afterwards as a witness, to prove that he had no authority whatever to act as such at the time, or in case of his having had authority previously, to prove the happening of an event before heperformed the act, whereby his authority by operation of law, was revoked. If an agent be competent, and may be called on to prove such matters, of which I think there can be no doubt, why may not a person, who has undertaken to act as an arbitrator, be required to prove that he had no authority to act as such; or where he had such authority at one time, to prove an event, which took place subsequently, but prior to his making the award, that revoked his authority. The principle seems to be the same in either case. Besides, if he be competent tp prove the affirmative, would it not be somewhat anomalous after he is sworn or affirmed, to speak the whole truth and nothing but the truth in regard to it, to hold that he shall not be allowed to prove the negative if true ? The judgment must be reversed and a venire de novo awarded.

Judgment reversed and a venire de novo awarded.