Taylor v. St. Johnsbury & L. C. R. R. , 57 Vt. 106 ( 1884 )

The opinion of the court was delivered by

Powers, J.

We attach little importance to the question, whether in strictness the award of the arbitrators followed the submission made by the parties. The defendant has taken, and is now enjoying, the fruits of the award which it insists is void. If the defendant had vacated the land and the plaintiff was in possession, this objection to the award would stand in a more favorable light. ' But having gained all the advantage which it sought by the submission, and holding it under and by virtue of the award, the defendant has waived all objections to the award on this score. Cald. Arb. 374; Kennard v. Harris, 2 B. & C. 801; Culver v. Ashley, 19 Pick. 300. ‘‘ If in making up their award, arbitrators exceed their authority the party against whom this excess operates will ratify the entire action of the arbitrators by accepting from the other party performance of the acts nominated in the award to be done by such other party.” Morse Arb. 530.

The declaration avers, that the award was duly published, and in consideration of the promise of the defendant to perform and abide the award, the plaintiff executed his deed of the land, and the defendant paid him the $100 awarded to him, and agreed to comply with the other terms and conditions of said award to be by it performed.

By these acts the parties are now precluded from disputing the force of the award, and stand in court precisely as they would if the award in strictest sense had followed the submission.

We think the action of assumpsit will lie upon this award. Culver v. Ashley, supra; Pierce R. R. 424, 425; 23 Me. 259; 62 Me. 49; Cald. Arb. 388; Morse Arb. 573. The parties mutually promised on good consideration to perform the award. The award is properly made covering various duties to be by the parties respectively performed. Practically, these mutual duties are imposed by the contract of the parties. They agree to do all things that the arbitrators may prescribe. The duty to convey the land, pay the money, build the cattle-pass, preserve the spring, and keep up the fences, is a duty that the parties have agreed to perform, inasmuch as they have promised to perform the award. And after award made the defendant promised to perform it as made.

It is no objection that. successive actions may arise. Installments of annual interest on an entire contract are recoverable in assumpsit; and many other instances might be cited. If duties are successively violated, successive actions may.be brought. So far as damages have already happened to the plaintiff, his right of action is complete.

The pro forma judgment of the County Court is reversed, and judgment that the demurrer be overruled, and the declaration adjudged sufficient. Case remanded with leave to defendant to replead on usual terms.