Sprague v. Hull ( 1859 )

There is no express stipulation in this covenant of submission that either party will perform the award of the referees named therein, nor, from what is stipulated, can any personal covenant to that effect be fairly implied. It is an ordinary agreement, under seal, it is true, to submit a certain action then pending between the parties, and other matters, and especially a boundary line of their respective estates, about which a dispute existed, to certain referees, who were to act under a rule of the court of common pleas. Every clause in the agreement points merely to this; and, certainly, there is not one which looks farther than the remedy by execution for the enforcement of the award. Without doubt, where this is deficient, as, for the purpose of the specific performance of any other act than the payment of money, it in general is, a court of law, by damages, or a court of equity, by a decree for specific performance, would furnish to the plaintiff a remedy, based upon the award, suited to his case; but, because the agreement of submission is sealed, it by no means follows that an action of covenant upon it is such remedy. It may be, if the covenant contains a stipulation to perform the award; for, defective as the execution of a common-law court must necessarily be to enforce all that may be awarded under so general a submission as this, we see no objection to the parties providing, by personal covenants to perform the award, for contingencies which an ordinary execution cannot reach. But then there must be such a covenant before the party can claim, in an action of covenant, damages for its non-performance; and a mere covenant to submit to a rule of court is not, and has not been deemed to be, such a covenant.

The evidence objected to by the defendant in the court below, so far from tending to prove a breach of the covenant upon which he was sued, clearly showed that he had performed it by submitting his rights to the final award of the referees in whose choice he had concurred, and did not tend to support the issue upon which damages were assessed against him. The court erred in admitting it for such a purpose, and, as the verdict shows, to the injury of the defendant. The verdict must, therefore, be set aside, and a new trial granted.