Laws

If there are conditions precedent Post Date: Fri, 1 Aug 2008 13:04:55 +0000
4 Readiness for Deliver Y Where, under the terms of the submission, the award is to be ready for delivery at a specified time the fact must be shown; but for this purpose it is sufficient to allege that the award was mad e 5 Concurrent Act S Where there are concurrent acts to be performed, it is necessary to allege plaintiff's readiness to perfor M 6 Brown v Warnock, 5 Dana (Ky) 492; Miller v Buckeye Mut F In S Co, 2 111 App 125; Hodsden v Harridge, 2 Saun d 62 b, note; Birks v Trippet, i Saun d 32; Roper v Levi, 21 L J E X 28; Mansell v Burredge, 7 T R348; Biddell v Dowse, 6B C 255; Tom- linson v Arriskin, i Comyns 330 But where the parties are bound by the submission in a different manner from what they would in general be subject to, the terms of the submission should be set out fully to show their liability in that particular cas e Hods- den v Harridge, 2 Saun d 61 b, note; Mansell v Burredge, 7 T R348 In an action on an award a count thereon which fails to set forth the submission is bad, and is not aided by other counts without an express reference to the M Brown v War- nock, 5 Dana (Ky) 492 1 Finley v Finley, II Mo 625; Whitcomb v Preston, 13 Vt 53; Blanchard v Murray, 15 Vt 548; Mat- thews v Matthews, 2 Curt (U S) 106; Pascoe v Pascoe, 3 Bin g N Ca S 898 ; Gear v Bracken, i Pi N ( Wi S ) 249 2 Skinner -v Andrews, i Saun d 169; Bissex v Bissex, 3 BurR1730 But see Blanchard v Murray, 15 Vt 548 But if no time for making the award is provided by the submission, the com- plaint need not aver that it was made in a reasonable ti Me Adams v Ham, 5 U C QB 292; Henderson v Williamson, i Str A 116; Everard v Paterson, 2 Marsh 304 3 Illustration S Thus, if the award were under seal, it is necessary to allege in an action thereon that it was under the seal of the arbitrator S Henderson v Williamson, I Str A 116; Mann v Richardson, 66 111 481 Where a submission is "so that the award be made in writing ready to be delivered," it need not be stated that it was in writing if facts are alleged from which it is necessarily inferred to be in writin g Munro v Alaire, 2 Ca I ( N Y)320 4 Lent v New York, etc, RCo, 130 N Y 504; Owens v Waters, 2 M W 91; Granger v Dacre, 12 M W 431 See also Skinner v An- drews, i Saun d 169; Blanchard v Murray, 15 Vt 548; Cole v Chapman, 3 111 35; Miller v Buckeye Mut F In S Co, 2 111 App 125 5 Rovvsby v Manning, 3 Mo d 331; Doyley v Burton, i L d Ray M 533; Busfield v Busneld, Cro Ja C 577; Freeman v Bernard, i L d Raym, 247 ; Bradsey v Clyston, Cro CaR541; kobinson v Calwood, 6 Mo d 82; Marks v Marriott, I L d Ray M 114; Dates v Bromhill, 6 Mo d 176, i Sal K Where a submission is "so that the award be made in writing, ready to be delivered," it need not be averred that it was ready to be delivered if facts are stated from which that fact can be inferre d Munro v Alaire, 2 Ca I ( N Y)32 O Allegation of Readiness to DeliveRIf an award is required to be delivered to the parties, an allegation that it was ready to be delivered is insuffi- cient. Pratt v Hackett, 6 John S ( N Y) 14 6 Rowe v Young 2B B 165, per Bailey, J, 234; Phillips v Knightly, I Barnard 84 Where an award directs the execu- tion of mutual releases, the complaint in an action thereon must allege a tender or delivery of such releas e Cole v Blunt, 2 Bosw ( N Y) 116 In an action of debt on an award a complaint, alleging that plaintiff was Conditions Precedent. If there are conditions precedent, perform- ance must be allege d 1 Notic e Unless the submission specially provides for giving notice of the award, it need not be alleged that notice was give N 2 Promise to Perfor M It is not necessary to plead mutual promise to perform the award, as the promise is inferred from the act of sub- missio N 3 to deliver a release to defendant on defendant's delivering plaintiff a re- lease and paying him a sum of money, is insufficient if it fail to allege readi- ness or an offer by plaintiff to release Defendant Matthews v Matthews, 2 Curt.

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Baker v Booth, Dra Post Date: Fri, 1 Aug 2008 12:48:14 +0000
(U S) 105 Where an award provides that on its receipt the parties shall release to each other all matters and claims in the premises up to the time of the award, an action for nonperformance of the award cannot be maintained without alleging and proving a tender by plaintiff of such release to defend- ant, and his refusal to perform the awar d Hugg v Collins, 18 N J L 294 Where, under an award, acts are to be performed on the same day, plain- tiff, in an action for nonperformance of the award, must aver performance or readiness to perform his part of the award, otherwise defendant must plead plaintiff's nonperformance in baRHuy v Brown, 12 Wen d ( N Y) 591 Where it is awarded that each party shall perform certain acts, in an action for nonperformance plaintiff must al- lege performance or an offer to per- form, or that he has just excuse for not performing his part. Jesse v Cater, 28 Ala 475 In an action of debt on an award directing defendant to pay plaintiff a sum of money on a specified date, and directing plaintiff to deliver a horse to defendant on that date, the complaint must allege plaintiff's readiness to per- form his part. Baker v Booth, Dra (Ca N) 65 ; Skinner v Holcomb, 6 U C QB ( O S) 336 1 Cole v Blunt, 2 Bosw ( N Y) 116; Leitch v Beaty, 23 111 594; Lin- coln v Cook, 3 111 61; Lamphire v Cowan, 39 Vt 420; Smith v Stewart, 5 Ind 220; Sheaver v Handy, 22 Pic K (Mas S) 417; Hoffman v Hoffman, 26 N J L 175; Driver v Hood, 7B C 494; Birks v Trippet, I Saun d 32 But see Dudley v Thomas, 23Cal Approval oi Award by Secretary of Stat e Where the approval of the sec- retary of state is essential to the valid- ity of an award, in claims against the state submitted to the determination of commissioners, such approval must be averred in a complaint on the awar d Martin v State, 51 Wi S 407 2 Fraunce's Case, 8 Rep 92 b ; Hodsden v Harridge, 2 Saun d 62, note; Child v Horden, 2 BulSt 144; Gable v Moss, I BulSt 44; Juxon v Thornhill, Cro CaR132; Houghton z/ Burroughs, 18 N H 499 In Indiana the statute relative to arbitrations (2 Rev Stat227, 228, 229, 13) requires a copy of the award to be delivered to each of the parties or left at their usual places of residence by one of the arbitrators within fifteen days after the award is signed; and in con- structing this statute it was held that in an action on an arbitration bond given in pursuance of a submission under the statute, a complaint which failed to allege that a copy of the award was delivered to defendant was demurrabl e Coats v Kiger, 14 Ind 179 But where the submission is at com- mon law, it is unnecessary to plead service of a copy of the awar d Boots v Canine, 58 Ind 450 Waiver of Notic e If the arbitration bond requires the arbitrators to seal up their award when finished and keep it till the first day of a term of court beginning several weeks after the bond is dated, the requirement of the statute that notice of the award be given in fifteen days is thereby waive d Marsh v Curtis, 71 Ind 377 Allegation of Publicatio N Where the submission requires a notice of award, an allegation that the award was duly published is sufficient.

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5 It need not Post Date: Fri, 1 Aug 2008 12:37:44 +0000
Matthews v Matthews, 2 Curt (U S) 105 In Maine it was held that notice of the award prior to the commencement of the action is necessary to create an obligation on the part of the defend- ant to pay plaintiff the sum awarde d Woodbury v Northy, 3 Me 85 3 Sutcliff v Brooke, 15 L J Exc H Demand for Payment. Where an award is made for a sum of money unconditionally, the party becomes liable to pay on pub- lication of the award, and no allegation as to demand is necessar Y The rule is otherwise where the award is to pay money on re- queSt 1 Profert In declaring on the award no profert thereof is neces- sar Y 8 Oath of Arbitrator S If the award be made in pursuance of a sub- mission under seal, it need not be alleged that the arbitrators were swor N 3 5 The Declaration or Complaint in Action on Arbitration Bond A How TO SET FORTH AWAR d In an action on an arbitra- tion bond it is necessary to set out the whole award, or at least so much as is valid in the declaration or replicatio N 4 b THE ALLEGATION S It is sufficient for plaintiff to aver gen- erally that the matters agreed to be arbitrated as recited in the conditions of the bond were in fact submitted to the arbitrators, that the arbitrators in pursuance of the submission made and published their award, and that the defendant on request refused to perform it. 5 It need not be alleged that the bond was exe- cuted by both parties so as to show mutualit Y 6 118, 3 d L 302; Lupart v Welson, II Mo d 171, citing Armitt v Breame, i Sal K 76, and Squire v Grevell, 6 Mo d 34; Evans v McKinsey, Litt Se L Ca S (Ky) 262 Where an award is set forth sub- stantially showing defendant's obliga- tion to pay money, the law raises an implied promise which is sufficient in assumpsit or debt on the awar d Hay- wood -v Harmon, 17 111 477 1 Nichols v Rensselaer County Mut In S Co, 22 Wen d ( N Y) 125; Thompson v Mitchell, 35 Me 281; 3 Browning v Wheeler, 24 Wen d ( N Y) 258 4 Furlong v Thornigold, 12 Mo d 533; Foreland v Marygold, i Sal K 72; Diblee v Best, II John S ( N Y) 103 5 Stearns v Cope, 109 111 340 Counts upon an arbitration bond, which set out the bond of submission, and averred the making and publish- ing of an award covering the whole ground of the submission, and which were certain to a common intent, with a concluding averment of a refusal of Plummer v Merrill, 48 Me 184; Par- the defendant to perform it upon spe- cial request, were held goo d Chad- sey v Brooks, 7 111 379 Exception Necessity of Alleging Time of Performanc e In an action of debt on an arbitration bond a declaration which alleges the making of an award, and the failure of defendant to perform it, but which fails to allege the time within which the award was sons v Aldrich, 6 N H 264 Demand for Payment when Time not Specifie d If ihe award is for the pay- ment of money, but does not specify the time for payment, it may be al- leged that the payment is to be made on deman d Parmelee v Allen, 32 Con N 118 Demand for Performanc e Nor is an allegation of request to perform neces- to be performed, is fatally defective sary unless the award by its terms is to be performed on requeSt Waters v Bridge, Cro Ja C 639; Reid v Reid, 16 U C C p 247 2 Perry v Nicholson, I BurR278; Dod v Herbert, St Y 459; Hodsden v Harridge, 2 Saun d 62 b, not e in that it cannot be determined from the declaration whether the time for the performance of the award has yet arrived, or whether there has been any breach of the bon d Dale v Dean, 16 Con N 579 6 Cole v Chapman, 3 111 34 Confirmatio N If the submission were under statute, it should be alleged that the award was confirmed by the proper court.

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Barlow v Todd, 3 John Post Date: Fri, 1 Aug 2008 12:19:47 +0000
1 Debt on Bond under English Practice Assigning Breache S In debt on an arbitration bond it was usually necessary, under the English stat- ute, 3 to assign breaches of the award in the declaration ; or, if the award was not set out in the declaration, to set it out in the repli- cation and assign breache S 3 Form of Conclusio N In debt on an arbitration bond, if defendant pleads no award and plaintiff replies setting forth the award, the replication should conclude with a verificatio N 4 Where de- fendant pleads the award and a performance, a replication, it seems, should conclude to the countr Y 5 If defendant sets out only part of the award, and the award as set out is bad for want of the part omitted, a replication contain- 1 Schroyer v Bash, 57 Ind 349; Bash v Van Osdol, 75 Ind 186; Healey v Isaacs, 73 Ind 226 2 8 9\V M II I, C 2, provides that "in all actions upon bond for non- performance of any covenants or agreements contained in deed or writing, the plaintiff ' may assign ' as many breaches as he shall think fit; and the jury shall assess not only such damages and costs as have here- tofore been usually done, but also damages for such of the breaches as the plaintiff upon the trial of the is- sues shall prove to have been broken, and the like judgment shall be entered on such verdict as heretofore has been usually don e" It is held, notwithstanding some cases to the contrary Walker v Priestly, Co M Rep 376; Dry v Bond, Bul L Ni S Pr I 164; Paul v Rogers, TR30 Geo 3 KB that the words "may assign" are compulsory upon the plaintiff Gainsford v Grif- fith, i Saun d 58, note I 3 Meredith v Alleyn, i Sal K 138; Kirk v Unwin, 6 Exc H 908, 20 L J Exc H 345; Hayman v Gerrard, i Saun d \O2; Shelley v Wright, Willes 9; Fox v Smith, 2 Wil S 267; Barrett v Fletcher, Yelv 152; Harding v Holmes, i Wil S 122; Lee v Elkins, 12 Mo d 585; Ormelade v Coke, Cro Ja C 354 Practice as to Assigning Breac H With respect to the pleading under the statute there were two modes of prac- tice: One was to declare as upon a common bond; the defendant in his plea set out upon oyer the condition of the bond, which was, for instance, to perform the covenants in an indent- ure ; he then set out the indenture and the covenants and pleaded per- formance; plaintiff thereupon in his replication assigned breach of the cov- enant, for which he sought a satisfac- tio N The other was to state the con- dition of the bond and the indenture, and to assign the breaches in the declaratio N Gainsford v Griffith, I Saun d 58, note I Consequence of Failure to Assign Breac H The want of assigning a breach was a matter of substance and bad on gen- eral demurreRBarrett v Fletcher, Cro Ja C 220, Yelv 152; Heard v Baskerville, Ho b 232; Brickhead v Archbishop of York, Ho b 197 Assigning Bad Breac H The same was the case if plaintiff assigned a bad breach and it was not aided after verdi Ct Co M Di g Pld g 14; Pit v Wardal, God b 164 Breach not Traversibl e But the breach when assigned was not issuable or traversible, nor could the defend- ant give any answer to it; for the plea as between the parties has an issue before, and the breach is but an excrescence or surplusage, Barrett v Fletcher, Yelv 152; and because any answer to the breach must neces- sarily admit the existence of the award and consequently be a depart- ure, Morgan v Man, T Ray M 94 4 Fisher v Pimbley, n East 188; Roberts v Mariett, 2 Saun d 188; Benedict!'. Parks, i U C C p 370; Maxwell v Ransom, I U C QB 219; Allen v Watson, 16 John S ( N Y) 205; Barlow v Todd, 3 John S ( N Y) 367; Gardner S Oden, 24 Mis S 382 5 Veale v Warner, i Saund 326 ing the whole award should, it seems, conclude to the countr Y 1 6 Pleas and Defenses to Actions on Award A IN GENERA L In an action on an award defendant should either deny the exist- ence of the award, or allege performance or some excuse for non- performanc e 2 The plea must be as broad as the submission and the averments in the declaration, or it will be demurrabl e 3 b EXCESS OF JURISDICTIO N To an action at law on the award or arbitration bond it may be pleaded that the arbitrators exceeded their jurisdiction ; 4 but the plea should show in what the excess of jurisdiction consiste d 5 C STATUTE OF LIMITATION S In debt on an award under the hand and seal of arbitrators a plea that the cause of action had not accrued within six years was not permissible before the enactment 3 4 W M Iv, C 42, 3, as the earlier statute (i J I, C 1 6, 3) was not applicable to such awards, which were deemed qua yz-specialtie S 7 d No SUBMISSIO N In debt on an award defendant may plead that there was no submissio N 8 Eevocationof Submissio N It is a good plea to an action on an award that defendant revoked the submission before the award was made, if the submission were revocabl e 9 And the plea 1 Veale v Warner, i Saun d 326, and not e With respect to a wrong conclusion either to the country or with a verifi- cation, it is no longer matter of sub- stance, for by statute (4 An N 316) it is reduced to mere form and must be specially shown for cause of demurreRRoberts v Mariett, 2 Saun d 190, note 5 2 Wooden v Little, 3 McCord ( S Car) 487 3 Macomb v Thompson, 14 John S ( N Y) 207 4 Fisher -v Pimbley, n East 188; Stewart v Webster, 20 U C QB 469; Averill v Buckingham, 36 Con N 359; Strong v Strong, 9 Cus H (Mas S) 560; Bean v Farnam, 6 Pic K (Mas S) 269; Boston Water Power Co v Gray, 6 Met (Mas S) 131; Person v Drew, 19 Wi S 225; Borrowe v Milbank, 5 Abb Pr ( N Y SupeRCt) 28; Briggs v Smit H 20 Barb ( N Y)4O9; Seely v Pelton, 63 111 101 In an action on an award under the Lands Clauses Conso L Act 1854, a plea that the award included compen- sation and damages in regard to mat- ters over which the arbitrators had no jurisdiction, is goo d Russell on Ar b (6th e d), 55 Buc Rleuch v Metropoli- tan Board of Works, L R, 3 Exc H 307; on appeal, L R, 5 Exc H 221; in H L L R, 5 H L 418; Beckett v Midland RCo, L R, I C p 241 To an action on a common-law award under a general submission de- fendant may plead that the award was made on matters not brought to the arbitrators' consideratio N Hall v Vanier, 6 Neb 85; Crane v Barry, 54 Ga 500 In an action on an arbitration bond under a plea of nul tiel award it may be shown that the arbitrators con- sidered and passed on matters not submitted to the M Carveth v For- tune, 12 U C C p 360 5 This is necessary to apprise plaintiff what to meet on the trial and to narrow the point to a single issu e Seely v Pelton, 63 111 101 6 The statute 3 4 W M Iv, C 42, 3, provides that all actions of debt upon any award, when the submission is not by specialty, shall be commenced within three years after the end of the session within which the act passed, or within six years after the accrual of the cause of action, and not afTer 7 Hodsden v Harridge, 2 Saun d 61, note; 2 Ke b 462 8 Miller v Buckeye Mut Fire In S Co, 2 111 App 125 9 Marsh v Bulteel, 5B A 507 In debt on an arbitration bond, unless the submission were made a rule of need not allege notice to the arbitrators or to the partie S 1 e WANT OF NOTIC e Want of notice of the time and place of the meeting of the arbitrators may be pleaded as a defense, 2 on the principle that no one should be condemned unhear d 3 / No AWARD When Plea Goo d Under the earliest English practice the plea of no award to an action on an award on a sub- mission bond was a sufficient plea only where no award was in fact mad e 4 The cases holding this doctrine were afterwards over- ruled, and it was held a good plea where there was a revocation of the arbitrators' power before the award was made ; 5 where the arbitrators failed to pass on matters submitted and notified to them ; where the award was not made within the time limited ; 6 court, defendant may plead that previ- ous to the making of the award he revoked the arbitrator's poweRAllen v Watson, 16 John S ( N Y) 205; Frets v Frets, i Co W ( N Y) 336 Marriage of Female Part Y The mar- riage of a female party to a submis- sion might be pleaded as a revocatio N Russell on Ar b (6th e d) 551; Charn- iey -v Winstanley, 5 East 266 Bankruptcy or Insolvenc Y The bank- ruptcy or insolvency of a party before the award was made could not be oleaded as a revocatio N Russell on Ar b (6th e d) 551 Insufficiently Pleaded Revocatio N Where there are several counts in a declaration, each founded on an al- leged submission and award, a plea purporting to answer the whole action, but alleging a revocation of only one submission, and not showing which is revoked, is demurrabl e Matthews v Matthew S 2 Curt (U S) 105 1 Frets v Frets, i Co W ( N Y) 336; Allen v Watson, 16 John S ( N Y) 205 2 Day v Hammond, 57 N Y 479; Curtis v Sacramento, 64Cal102 See also Paschal v Terry, Kelynge, de- cided in 1693; Whatley v Morland, 2 Dow L Pr Ca S 249; Salkeld v Slater, 12 A d E L 767 3 Elmendorf v Harris, 23 Wen d ( N Y) 628, reversing 5 Wen d ( N Y) 516; Lutz v Linthicum, 8 Pet (U S) 178; Falconer v Montgomery, 4 Dal L ( U S) 233; Passmore v Pettit, 4 Dal L (U S) 271; Thornton v Chapman, 2 Cranch ( C C) 244; Taber v Jenny, Sprague (U S) 320; Small v Court- ney, i Brev ( S Car) 205 4 House v Launder, r Lev 85; Morgan v Man, i Lev 127, T Ray M 34; Skinner v Andrews, i Lev 245; Roberts v Eberhardt, 27 L J C p 70, reversed in error, 28 L J C p 74 Thus in an action on an arbitration bond, where there was a plea of no award and a replication setting forth an award, a rejoinder that there were matters pending of which the arbitra- tors took no notice is a departur e Harding v Holmes, I Wil S 122 And in debt on a bond to perform an award defendant pleaded that the arbitrator did not make any award according to the conditions of the bon d Plaintiff replied that the award was made and tendered to be delivered according to the conditions of the bon d Held, that a 'rejoinder that the award was not so tendered was bad as being a departur e Roberts v Mariett, 2 Saun d 187 Denial of Plea must be Broad as Allegations of Declaratio N In an ac- tion of debt upon an arbitration bond, conditioned that the parties should severally abide by and perform the award of the arbitrators named, the declaration contained counts alleging the award of the two arbitrators and an umpire jointl Y To these counts it was pleaded that the two arbi- trators did not make an awar d Held, that the plea was bad, it being no answer to the averments of the counts, for the denial should be as broad as the allegation S Chadsey v Brooks, 7 111 379 5 Where defendant pleads no award and plaintiff replies setting forth an award, a rejoinder that defendant be- fore the making of the award revoked the submission, is good and not a de- parture from the ple A Allen v Watson, 16 John S ( N Y) 205 6 Harrison v Creswick, 13 CB 399; Roberts v Eberhardt, 27 L J C p where the arbitrators awarded on matters not submitted ; * where the award was defectively executed, 2 or where it was not warranted by the submissio N 3 When Plea Ba d The plea is bad where an award was actually made, but not delivered to defendant on his request ; 4 where the award was paid ; 5 where the award, though made pursuant to the submission, was bad on its face, as showing that the arbi- trators exceeded their jurisdiction ; 6 where the arbitrators awarded according to the judgment of a third person, by whose judgment they agreed in advance to be bound ; 7 where the award had been set aside; 8 or where the arbitrators gave defendant no opportunity to be hear d 9 When Plea Bad as Amounting to General Issu e To the general rule permitting a plea of no award to an action on the award or sub- mission bond in the cases enumerated 10 there are some excep- 70, 3 CB N S 482; King v Bowe N 8 M W 625; Elsom v Rolfe, 2 Smith 459 Verification of Ple A It is not neces- sary in an action on an arbitration bond that a plea in^bar admitting the execution of a bond, but denying tha f an award had been made, should be verified by affidavit, because the award is not the foundation, but merely the inducement to the actio N Titus - U Scantling, 3 Blackf (Ind) 372; Dresser v Stansfield, 14 M W 822; Armitage v Coats, 4 Exc H 641; Linsey v Ashton, God b 255 But in New York it was held that in debt on an arbitration bond, where defendant pleads no award and plain- tiff replies setting forth an award, a re- joinder that the arbitrators had not made an award touching one of the matters in controversy is a departure, in first pleading no award and then admitting it. Barlow v Todd, 3 John S ( N Y) 3 67- In Canada it was held that in an ac- tion of debt on an aibitration bond, where defendant pleads no award and the reply sets forth an award, a rejoinder that the arbitrators did not make their award in the premises, be- cause at the time of making the award plaintiff was indebted to defend- ant, and that if such claim had been considered by the arbitrators a sum would have been found due defend- ant, after deducting the sums found due plaintiff from defendant was bad, as being a departur e Maxwell v Ransom, i U C QB 219 1 Macomb v Wilber, 16 John S ( N Y) 227 2 Russell on Ar b (6th e d) 549; Morse on Ar b 594 In an action on an award made in pursuance of a submission by bond, where the plea is no award, defendant is entitled to verdict where it is shown that the award was defectively exe- cute d Wade v Dowling, 4 E L B L 3 In debt on a bond to perform an award, where the plea is no award and plaintiff replies setting out an award, a rejoinder setting out the whole award and showing that it was not authorized by the submission is not a departur e Fisher v Pimbley, II East 188 4 The objection that the award was not delivered on request cannot be shown under a plea of no award, but must be specially pleade d Rowsby v Manning, 3 Mo d 331; Marks v Marryott, i Lut W 524; Gates v Bromhill, 6 Mo d 176; Veale v War- ner, i Saun d 327 /, note; Perkins v Wing, 10 John S ( N Y ) 146 5 After a plea of no award and rep- lication showing an award ordering payment of money, a rejoinder alleg- ing payment is bad as being a de- partur e Hinton v Cray, 3 Ke b 512 6 Adcock v Wood, 6 Exc H 814 7 Whitmore z/ Smith in Error, 7 H N 509, reversing 5 H N 824 8 Roper v Levi, 21 L J Exc H 28 9 Thorburn v Barnes, 36 L J C P, N S 184 10 Wooden v Little, 3 McCord ( S Car) 487; Shockey v Glasford, 6 Dana (Ky) 9; Brown v Warnock, 5 Dana (Ky) 494; Bean v Farnam, 6 Pic K (Mas S) 268 ; Sharp v Woodbury, hold the plea bad as amounting to the issu e 1 g PERFORMANC e To an action of debt on the bond for fail- ure to perform the award, performance may be pleaded, but de- fendant must set out the award and show in what the perform- ance consist S 2 H ALTERATION OF AWAR d To an action of debt on the award, defendant may plead that the award was altered after being made, but the plea must show that the alteration was in a material part.

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Kerns, 5 Jones (N Car) 191 Post Date: Fri, 1 Aug 2008 12:02:41 +0000
3 18 Iowa 195; Barlow v Todd, 3 John S ( N Y) 367; Allen v Watson, 16 John S ( N Y) 205; Van Antwerp v Stewart, 8 John S ( N Y) 125; Diblee v Best, ii John S ( N Y) 103; Harker v Hough, 7 N J L 428; Miller v Buckey Mut F In S Co, 2 111 App 125; McCullough v McCullough, 12 Ind 487; Wade v Bowling, 4 E L B L 44; Roddy v Lester, 14 U C Q b 259; House v Launder, I Lev 85; Morgan v Man, I Lev 127; Skinner v Andrews, I Lev 245; Roberts v Eberhardt, 27 L J C p 70, reversed in error, 28 L J C p 74; Harding v Holmes, I Wil S 122; Roberts v Mariett, 2 Saun d 167, /; Harrison v Creswick, 13 CB 399 ; King v Bowen, 8 M W 625; Elsom v Rolfe, 2 Smith 459; Dresser v Stans- field, 14 M W 822; Armitage v Coats, 4 Exc H 641; Linsey v Ashton, God b255; Adcock zWood, 6 Exc H 8 14; Roper v Levi, 21 L J Exc H 28; Veale -v Warner, i Saun d 327 b, note; Hinton v Cray, 3 Ke b 512; Rowsby v Man- ning, 3 Mo d 331; Marks v Marryott, i Lut W 524; Fisher v Pimbley, n East 188; Oates v Bromhill, 6 Mo d 176; Thorburn v Barnes, 36 L J C P, N S 184; Maxwell v Ransom, I U C QB 219 But in an action on an arbitration bond a plea of no award to one of three cases submitted is not a suffi- cient answer to the awards admitted to have them made in the other two case S Marsh v Curtis, 71 Ind 377 1 Where a defense consists of mat- ters of fact merely amounting to a denial of such allegations in the decla- ration as plaintiff would have to prove under the general issue to support his case, a special plea is unnecessary as amounting to the general issue, and therefore the plea of no award to an action of debt on an award is bad as amounting to the general issu e Ott v Schroeppel, 3 Barb ( N Y) 56; Matthews v Matthews, 2 Curt (U S) 105 2 The plea should state a perform- ance by defendant of the whole award, or it would be bad in point of la W As where in debt on a bond, conditioned that defendant and two others should perform an award, the defendant pleads an award that he and the two others should pay to the plaintiff 2o S apiece, and that he paid the 2o S to the plaintiff, but says nothing as to the sums to be paid by the other two, the plea is insufficient, inasmuch as he is answerable for the whole awar d Veale v Warner, I Saun d 324 a, notes i and 3; Genne v Tinker, 3 Lev 24 If the award ordered payment of the rent named in an indenture it was not necessary to set out the indenture at length; but it should be set out at length if the order was to pay money according to the terms of the indent- ur e The rule is the same where the order directed the payment of a leg- ac Y Anonymous, i Vent. 87; Hagh v Chadwick, 2 Ke b 667 Nonperformance by Plaintiff Where arbitrators award something to be done by each party, and the acts are distinct and independent, the one not being a condition precedent of the other, the failure of one party to per- form his part of the award cannot be set up as a defense to a suit against hi M Girdler v Carter, 47 N H 305 Conditions Performed and not Broke N Under this plea the defendant can- not object that there was no obligation on the face of the bond that he should perform the award, but only that he should submit to one ; nor that the award was so uncertain as to create no duty to be performed by Defendant Kesler z'.Kerns, 5 Jones (N Car) 191 3 Brown e Warnock, 5 Dana(Ky) 492 I NIL DEBET.

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2 K OPENING AWAR Post Date: Fri, 1 Aug 2008 11:48:01 +0000
This is also a good plea to an action of debt on the awar d 1 Y NoNASSUMPSIT. If the action be assumpsit on a parol submission, nonassumpsit is a good plea and puts in issue all ma- terial averments of the complaint. 2 K OPENING AWAR d Where an arbitrator has made an award in plaintiff's favor, it is no defense to an action thereon that he afterwards made an order opening the case and fixing a day to hear evidence, on account of mistakes charged by defendant S 3 / MATTERS SUBMITTED NOT PASSED UPO N To an action at law upon the award, it may be pleaded that the arbitrators failed to pass on matters included in the submission and notified to the arbitrator S 4 The plea should allege that the arbitrators had notice of all the matters submitte d 5 M SET-OFf Set-off of a sum certain may be pleaded to an action of debt on a Submission bond, assigning as a breach non- payment of a sum certain awarded plaintiff 6 N ACCORD AND SATISFACTIO N To an action for nonper- 1 Ott v Schroeppel, 3 Barb ( N Y) 56; Bean v Farnam, 6 Pic K (Mas S) 268 Nunquam Indebitatu S In debt on a submission bond, the plea of nunquam indebitatus puts the submission in issu e Abbott v Skinner, n U C C P 309- 2 Green L Ev (i4th e d), p 70, 81 3 Robinson-Rea Mfg Co v Mel- lon, 139 Pa St 257 4 Mitchell v Staveley, 16 East 58; Aitcheson v Cargey (in error), 13 Price 639, 9 Moore 381, 2 Bin g 199, affirming Cargey v Aitcheson, 3 d R433; Randall v Randall, 7 East 8r; North Yarmouth v Cumberland, 6 Me 21 ; Sharp S Woodbury, 18 Iowa 195; Bean v Farnam, 6 Pic K (Mas S) 269; Hall v Vanier, 6 Neb 85; McCullough v McCullough, 12 Ind 487; Harker v Hough, 7 N J L 428; Stewart v WebsTer 20 U C QB 469 To an action at law on the award it may be pleaded as a defense that the arbitrators failed to determine all matters submitte d This is the proper remedy, and a bill in equity will not lie to set aside the award on that groun d Mickle v Thayer, 14 Allen (Mas S) 114 Demurrer when PropeRIn an action on an award, where it does not clearly appear on the face of the submission that the award does not cover all matters submitted, a demurrer to the declaration will not lie, but defendant must show by proper pleadings that the award does not include all matters submitte d Price v Via, 8 Gratt ( Va) 79- But where defendants, in addition to demurring to the declaration in an arbitration bond, set out the whole award as stated in the declaration, and allege that it is bad on its face for not determining all matters submitted to arbitration, the plea is bad as putting in issue matter of law already brought up by the demurreRStinson v Mar- tin, 22 U C QB 154 Where the submission and award are set out in full in the declaration, it is a question whether the objection that the award was not final as not de- termining the costs of the referee, which were included in the bond of submission, can be raised by plea, or whether defendant should not have demurre d Ellwood v Middlesex County, 19 U C QB 25 5 Elsom v Rolfe, 2 Smith 459 In an action on an award, where the submission was of "divers dis- putes and controversies," without spe- cifying them, and the defense is that the arbitrators have not decided all the matters submitted to them, the plea must show affirmatively that the arbi- trators have notice of the matters not passed upon, or the award will be con- sidered goo d Whitstone v Thomas, 25 111 319; Seely v Pelton, 63 111 101 6 Lindford v Mosgrave, 6 U C Q b ( O S) 642 See also Adams v Harrold, 29 Ind 198 formance of an agreement under seal to perform an award, a parol agreement made after the breach for payment of a smaller sum at an earlier date than that prescribed by the award may be pleaded by way of accord and satisfaction ; the agreement being merely inducement and the action being on the awar d 1 O MISCONDUCT OR MISTAKE OF ARBITRATOR S under the oia English Practice the misconduct or mistake of arbitrators could not be pleaded as a defense to an action on an awar d* A bill in equity, however, would lie to set aside the award on those grounds, and they may probably be pleaded as a defense to an action at law since the enactment of the Judicature Act of i875- 3 In America the authorities are conflicting, and no general rule can be state d Thus, in New Hampshire, New Jersey, Vermont, Vir- ginia, and probably Iowa neither mistake nor misconduct of arbitra- tors is pleadable as a defense to an action at la W 4 In Kentucky, 1 Smith v Trowsdale, 3 E L B L 2 Riddel v Sutton, 2 M p 345, 5 Bin g 200; Brazier v Bryant, 10 Moore 587; Braddick v Thompson, 8 East 344 ; Wiels v Maccarmick, 2 Wil S 148; Whitmore v Smith, 31 L J Exc H 107; Chicot v Lequesne, 2 Ve S 315: Veale v Warner, i Saun d 327 a, note 3; Grazebrook v Davies, 5 b C 534, 12 E C L 306; In re Hall, 2 M g 847; Johnson v Du- rant, 2B A 925; Russell on Ar b (6th e d) 550 3 Russell on Ar b (6th e d) 550 4 Marylan d In an action at common law on an award no extrinsic circum- stance or matters of fact dehors the award can be pleaded or given in evi- dence to defeat.

Autor of the post: Undefined

THE FAILURE OF ARBITRATOR Post Date: Fri, 1 Aug 2008 11:34:03 +0000
Thus fraud, partial- ity, misconduct, or mistake of arbi- trators is not admissible to defeat it. But courts of equity will in all cases grant relief and upon due proof set aside the awar d Sisk v Garey, 27 Md 401 New Hampshire Misconduct of ar- bitrators is not the subject of a plea, but only a ground to apply to the court to set aside the awar d Fletcher v Hubbard, 43 N H 58 Neither a mistake of arbitrators in deciding a point of law nor the pro- curement of an award by false and fraudulent testimony can be pleaded in a suit at law on the submission bon d Elkins v Page, 45 N H 310 Set also Rand v Redington, 13 N H 72; Tracy v Herrick, 25 N H 381 New Jerse Y It cannot be pleaded as a defense to an action at law on an arbitration bond that the arbitrators were guilty of misconduct, nor can mistakes of law or fact in making the award be pleaded as a defense unless such mistakes appear upon the face of the awar d Sherron v Wood, 10 N J L 7, distinguishing Marker v Hough, 7 N J L 428 Ver Mont Neither mistake nor ir- regularity of conduct on the part of arbitrators which does not affect the whole award is a ground of defense to it in an action at la W Shepherd z Briggs, 28 Vt 81; Emerson v Udall, 13 Vt 477 See also Woodrow v, O'Conner, 28 Vt 776 VirginiaIn an action on an award or submission bond, where the sub- mission is by the mere act of the par- ties, defendant cannot plead corrup- tion or partiality in the arbitrator as a defens e Miller v Kennedy, 3 Ran d ( Va) 2 In covenant for not performing an award a plea that the arbitrators re- fused to hear legal and pertirerf evi- dence adduced by defendant, and that the award was not made in pursuance of the evidence adduced, but on per- sonal knowledge of the arbitrators themselves, or some of them, respect- ing the matter in controversy is bad, as impeaching the conduct of the ar- bitrators, and was properly rejecte d Doolittle v Malcom, 8 Leigh ( Va) 608 In Iowa it seems that in an action on an arbitration bond matters im- peaching the conduct of the arbitra- tors cannot be set up as a defense un- less for corruption, gross partiality MassacJiusetts, Ohio, and Pennsylvania either defense may be so pleade d 1 In Alabama, Canada, and probably Maine misconduct may be so pleaded, and in Wisconsin mistake may be thus availed of 2 In Missouri and New York these defenses originally could not be pleaded to an action at law on the award, but they are available now in such actions by statutory changes in practic e 3 In or want of authority, and then per- haps only in equit Y Burroughs v David, 7 Iowa 154 1 KentucKy Here it may be pleaded as a defense to an action on the award that the arbitrators made a mistake in the award or were guilty of frau d Camplin v Eads (Ky, 1894), 24 S W Rep 1068 Massachusett S In this state it was said: " As our chancery powers do not authorize us to vacate or correct an award, there would be a failure of justice if the merits of an award might not in some cases be re-exam- ine d In cases, therefore, of corrup- tion in the arbitrators, or where they exceed their authority or there are gross errors and mistakes in the award, relief may be granted under our system of jurisprudence by allow- ing the defendant to plead the matter in an action on the awar d" Bean RFarnam, 6 Pic K (Mas S) 268 In debt on a bond to perform an award partiality of the arbitrator, un- less expressly waived, may be pleaded as a defens e Strong v Strong, 9 Cus H (Mas S) 560 Mistake of arbitrators may be pleaded as a defense to an action at law on an awar d Mickles v Thayer, 14 Allen (Mas S) 114 Ohio The defendant in an action on an award may set up as a defense thereto any matter which constitutes good ground in equity for setting aside or canceling the awar d Brymer v Clark, 20 Ohic St 231 Pennsylvania In debt on a com- mon-law award misconduct of arbi- trators may be pleaded as a defens e Speer v Bidwell, 44 Pa St 23 In debt on an arbitration bond mis- take of the arbitrators may be pleaded as a defense, and the court will ad- minister equal justice between the parties according to its powers as contrasted with those of a court of equity; but the plea must clearly show in what the mistake of the arbitrators consist S Williams v Paschall, 3 Yeates (Pa) 564 2 Alabama Neglect to Hear Part Y In an action on an award a plea aver- ring that the defendant had his de- fense and was prepared to prove it before the arbitrators, but that they adjourned after hearing plaintiff's testimony, promising to hear defend- ant's testimony at another time of which he should have notice, and afterwards rendered their award with- out hearing or notifying him presents a valid defens e Graham v Woodall, 86 Ala 313 Maine Here it has been decided, at least by implication, that misconduct or partiality of arbitrators may be pleaded as a defense to an action on the awar d Defendant pleaded a sub- mission and award as a defense, and plaintiff demurred, relying on miscon- duct, partiality, or fraud in procuring the award to set it asid e The court said: "Whether an award is void by reason of fraud in the party, or cor- ruption, gross partiality, or prejudice on the part of the arbitrators, is not a question of law to be determined on a demurrer to the plea, but a question of fact to be submitted, if the parties de- sire it, to a jur Y" Duren v Getchell, 55 Me 241 WaiveRThe fact that an arbitrator examines witnesses behind the back of one of the parties cannot be set up by such party to avoid the award if, after the fact came to his knowledge, he con- tinued to attend the subsequent pro- ceeding S Small v Trickey, 41 Me 507 Wisconsi N Under the statutory, provision that defendant may set forth as many defenses or counterclaims as he may have, whether legal or equi- table, defendant in an action at law on an award may plead mistakes in com- putation made by the arbitrator S Person v Drew, 19 Wi S 225 Canad A To an action at law on an award a plea showing misconduct of the arbitrators is goo d Stewart v Webster, 20 U C QB 469 ; Stinson v Marti N 22 QB 154 3 Missour I An award made under Indiana it seems that the question of their availability depends on the nature of the submission, and whether there was a suit pending at the time of the submissio N 1 P THE FRAUD OR MISCONDUCT OF THE SUCCESSFUL PARTY could not have been pleaded as a defense to an action at law on the award, under the English practice prior to the passage of the Judicature A Ct 2 In America the decisions are conflicting, and it a common-law reference cannot, in an action at law, be resisted on the ground of unfairness in obtaining the award or for errors of judgment in the referee S It can only be set aside in equit Y Finley v Finley, II Mo 624 Under the statute relating to arbi- trations partiality or prejudice of arbi- trators may be pleaded as a defense to an action at la W Hyeronimus v Allison, 52 Mo 102 New York Fraud, corruption, or mistake of arbitrators cannot be pleaded as a defense to an action at law on the awar d The party aver- ring it must bring his suit or in some proper way assert his claim to have the award set asid e Elmendorf v Harris, 5 Wen d ( N Y) 516; Owen v Boerum, 23 Barb ( N Y) 187; Roose- velt v Thurman, i John S C H ( N Y) 220; Cranston v Kenny, 9 John S ( N In the former case it was said: " The true doctrine, then, seems to be this: that where there is an agreement to make the submission a rule of court the award may be enforced either by action or by attachment, and in either case defendant can resist for matter appearing on the face of the submis- sion and award, and for such onl Y If the defendant wishes to avoid for matter dehors the award, as for corrup- tion or partiality, he must apply for that purpose by motion within the time specified by statut e If there is no stipulation to make the submission a rule of court, or when, in fact, there is no rule entered, the award can be enforced by action only, and in such case the defendant may avail himself of any matter appearing on the face of the award and submission, but no otheRIn such case, if the person dissatisfied with the award wishes to avoid it for the improper conduct of the arbitrators or any matter dehors the award, he has no remedy in a court of law by motion, but must apply to a court of equit Y" Elmendorf v Harris, 5 Wen d ( N Y) 516 Gross partiality of the arbitrators cannot be pleaded as a defense to an action on the awar d Morewood v Jewett, 2 Robt ( N Y) 496 A court of chancery may correct a mistake or miscalculation made by ar- bitration, or relieve against partiality or corruptio N But there is no such remedy at law in a case of submission not within the statut e Newland v Douglass, 2 John S ( N Y) 63 Cases under the Cod e In an action on an award an answer seeking to avoid it alleging misconduct of the arbitrators and mistake in ascertaining the amount due from defendant to plaintiff, is goo d Garvey v Carey, 35 How Pr ( N Y SupeRCt) 282 In an action on an award, as in other cases under the code, defendant may put in an answer alleging facts suffi- cient to vacate the award, and he is no longer driven to a cross-action for that purpos e Knowlton v Mickles, 29 Barb ( N Y) 465 1 Indiana To an action at law on an award misconduct cannot be pleaded where there was no suit pending and no agreement to make the submission a rule of court under the statut e Hough v Beard, 8 Blackf (Ind) 158; Hays v Miller, 12 Ind 187 The rule is otherwise where there was an action pending and an agree- ment to make the submission a rule of court, in which case fraud of success- ful party and probably misconduct or mistake of arbitrator could be pleaded as a defense to an action at law on the awar d Elliott v Adams, 8 Blackf (Ind) 103; Rice v Loomis, 28 Ind 399; Carson v Earlywine, 14 Ind 256 2 Grazebrook v Davies, 5B C 534, 12 E C L 306; Braddick v Thompson, 8 East 344; Riddel v Sut- ton, 2 M p 345, 5 Bin g 200; Veale v Warner, I Saun d 327 a, note 3; Whitmore v Smith, 31 L J Exc H 107 probably cannot be pleaded as a defense to such action in those states where corruption or mistake of arbitrators is not pleadabl e 1 Q WAIVERA parol agreement to waive an award cannot be pleaded to an action on an arbitration bon d 2 RNONCOMPLIANCE OF BOND WITH STATUT e A plea to ail action on an arbitration bond, alleging the bond to be void by the statute of another state where executed, is good, but the statute should be specially pleade d 3 S AWARD NOT MADE IN REASONABLE TI Me Where no limit to time of making the award is contained in the submis- sion, a plea that the award was not made in a reasonable time is ba d 4 t. THE FAILURE OF ARBITRATOR TO TAKE OATH, when this is required, may be set up as a defense to an action to enforce an awar d 5 7 DemurreRIf the award be fatally defective on its face as set out in the declaration, defendant should demuR6 And if the 1 In Massachusetts it was held that misconduct or fraud of the successful party to an arbitration maybe pleaded as a defense to an action at law on the awar d Withington v Warren, 10 Met (Mas S) 431; Boston Water Power Co v Gray, 6 Met (Mas S) 131 ; Strong v Strong, 9 Cus H (Mas S) 560; Lincoln v Taunton Copper Mfg Co, 8 Cus H (Mas S) 415 In Indiana it was held that fraudulent concealment by a party to an arbitra- tion of facts material to the defense of his opponent was not pleadable as a valid defense to an action at law on the award, The White Water Valley Canal Co v Henderson, 3 Ind 3; and the fact that the successful party at an adjourned meeting of the arbitrators, in the absence of the other party, pro- cured the award by false statement, was likewise no defense, Norton v Browne, 89 Ind 333 In Iowa fraud and misrepresenta- tion of the successful party cannot be pleaded as a defense to an action at law on the awa/ d Burroughs v David, 7 Iowa 154 In New Hampshire procurement of an award by false and fraudulent testi- mony is not pleadable as a defense to an action on the submission bon d Elkins v Page, 45 N H 310 VirginiaIn assumpsit on an award under a parol submission defendant may show under the general issues that the submission was procured by frau d Bierly v Williams, 5 Leigh ( Va) 700 2 Braddick v Thompson, 8 East 344- 3 Titus v Scantling, 3 Blackf(Ind) 372 See also Irving z McLean, 4 Blackf (Ind) 52 4 Curtis v Potts, 3 M S 145 5 Day v Hammond, 57 N Y 479; Box v Costello, 6 Mis C Rep ( N Y) 415 See also Combs v Little, 4 N J E Q 310; Inslee v Flagg, 26 N J L 368; Lile v Barnett, 2 Bibb (Ky) 166; Overton v Alpha, 13 La An N 558; Bethea v Hood, 9 La An N 88; Fris- sell v Fickes, 27 Mo 557; Toler v Hayden, 18 Mo 399 Waiver of Oat H In some jurisdic- tions the oath may be waive d Wood- row v O'Conner, 28 Vt 776; Hill v Taylor, 15 Wi S 190; Otis v Northrup, 2 Miles (Pa) 350; Browning v Wheeler, 24 Wen d ( N Y) 258; Win- ship v Jewett, i Barb C H ( N Y) 173 6 Gisburne v Hart, 5 M W 50; Cargey v Aitcheson, 2B C 170; Fisher v Pimbley, n East 188; Hill v Hill, ii Smed M (Mis S) 616 Excess of Jurisdictio N Thus if, in pleading an award, it appears on the face of the plea that the arbitrators exceeded their powers, the objections may be taken by demurreRYoung v Shook, 4 Rawle (Pa) 299 When Demurrer will not Li e If on the face of the submission it does not clearly appear that the award does not cover the whole matter submitted, a demurrer to a declaration on the award will not be sustained; but the defendant must show by proper plead- award as set forth in the declaration varies from the oyer, defend- ant should demur speciall Y 1 On demurrer it will be intended that the arbitrators acted within the submission, unless the con- trary appears on the face of the awar d 3 I I AWARD AS DEFENSE TO ACTION AT LAW 1 In Genera L An award may be pleaded as a bar to an action at la W 3 Award Made Fending Actio N An award made on cause referred after joinder of issue may be pleaded as a bar to the further maintenance of the actio N Lowes v Kermode, 8 Taunt 146; Storey v Bloxham, 2 Es P 503 Award on Farol Submission as Defense to Action on Bon d A plea that after money became due on a bond plain- tiff and defendant made a parol sub- mission, under which it was awarded that defendant should pay plaintiff a certain sum and that he render thereof, is insufficient in an action on the bond, as the debt is due on a specialt Y Luddington v White, 3 St Y 350 Agreement to Submit to Arbitratio N A mere agreement to submit matters in difference to arbitration cannot be pleaded as a bar, whether made before or after the awar d Kill v Hollister, i Wil S 129; Mitchell v Harris, 2Ve S JR129; Harris v Reynolds, 7 QB 71; Goldstone v Osborne, 2 C p 551; Street v Rigby, 6Ve S 815; Nichols v Chalie, 14 Ve S 270; Thompson v Charnock, 8 T R139; Allegre v Maryland In S Co, 6Har J (Md) 408; Randel v Chesapeake, etc, Canal Co, i HarR(De L) 234; Gray v Wilson, 4 Watts (Pa) 39; Horton v Stanley, i Miles (Pa) 418; Frink v Ryan, 4 111 322; Ross v Nes- bit, 7 111 252; Gore v Chadwick, 6 Dana (Ky) 477; Smith v Barse, 2 Hill ( N Y) 387; Haggart v Morgan, 5 N Y 422 Contra, Halfhide v Pen- ning, 2 Br O C C 336 Illustration S An agreement to ar- bitrate in case of nonagreement does not bar an action for salvage brought in the ordinary way in admiralt Y If effect can be given to it at all, it is only by bringing an action upon it for not submitting to arbitratio N Poto- mac Steamboat Co v Baker Salvage Co, 123 U S 40 When a contract does not stipulate that no action shall be brought for breaches until after an award is made, a mere agreement in such contract to refer controversies arising therein to arbitration does not bar suit by either ings that the award is deficient, '.

Autor of the post: Undefined

Turberville v Self, 2 Wash Post Date: Fri, 1 Aug 2008 11:22:29 +0000
hat the plaintiff may have opportunity to repl Y Price v Via, 8 Gratt ( Va) 1 James v Walruth, 8 John S ( N Y) 410; Foreland v Marygold, i Sal K 73; i L d Ray M 715 In an action on an arbitration bond defendants set out the bond and con- dition on oyer, the condition being that defendants should perform the award of Joseph Kimble Gooding, and pleading that "the said arbitrator mentioned in the condition of the said supposed, writing obligatory did not on or before, etc, make any awar d" Plaintiff replied that Jasper K Good- ing, arbitrator in the condition of the said writing obligatory mentioned, did within the time limited make his awar d Held, that the defendants were entitled to judgment on a special demurrer, assigning for cause that the plea and condition of the writing oblig- atory showed that defendants were bound to abide the award of Josep H Kimble Gooding, and that defendants pleaded that no award was made by the arbitrator therein mentioned, which plea the plaintiff answered by pleading an award made by one Jasper K Gooding and showing a breach thereof Tewsley v Dunlop, i U C QB 138 2 Bacon v Wilber, i Co W ( N Y) 117 3 Tittenson v Peat, 3 At K 529; Farrington v Chute, I Ver N 72 Award must be Consonant with Sub- missio N Where two members of a firm submit to arbitration questions as to the profits and losses of the firm, and the share of each in the partner- ship estate and other profits, in order that either might buy the interest of the other, an award undertaking to state an account between them and de- ciding that the partnership business ras run at a loss is not consonant with the submission, and cannot be ^leaded as a bar to an acti'on by one of the partners against the other fora dissolution and accountin g Garrow Nicolai, 24 Oregon 76 English Rul e Under the English practice it was necessary to plead an award specially if defendant desired to take advantage of it as a defens e 1 American Rul e In America the weight of authority, it is appre- hended, sustains the same doctrine, although there are some ex- ception S 2 2 How Set Fort H Where the award is pleaded as a defense, its substance should be set forth so that the court may be able to say that if such an award was made the action would be barre d 3 party for damages for a breach of the contra Ct Oakwood Retreat Asso C v Rathborne, 65 Wi S 177 Reversal of Award Effe Ct A simple reversal by the committee of appeals of an award made by the committee of arbitration decides nothing, merely leaving the parlies to the submission where they stood before; and such proceedings constitute no bar to a suit by one of the parties against the other, in reference to the matter in disput e Redmond v Bedford, 40 111 267 1 2 Chitt. P I 146, notes, 6th e d ; Allen v Milner, 2 C J 47; Gas- entitle a defendant to insist on an award as a bar he must allege it as such in his answeRBrazill v Isham, 12 N Y 9 Contra Wisconsi N When it be- comes necessary to establish a sub- mission and award as a defense to an action for the causes or matters so submitted, the same may be given in evidence under the general issu e Winne v Elderkin, 2 Pi N (Wi S) 248 3 Gihon v Levy, 2 Duer ( N Y) 176 In assumpsit, where the defendant pleads a set-off, a replication alleging coyne v Edwards, i Y J 19; Crofts arbitration and award on the causes of v Harris, Cart H 187; Freeman v Ber- nard, i Sal K 69; Parsloe v Baily, i Sal K 76, 6 Mo d 221, 2 L d Ray M 1039; Allen v Harris, i L d Ray M 122, Ba C A b Ar b g ; Roper v Levy, 7 Exc H 55; Clapcott v Davy, 4 L d Ray M 611; Dighton v Whiting, i Lut W 51; Linch v Dac Y i Ke b 848; Hare v George, Cro Eliz 66 But see Murray v Gregory, 44 JuR555 Place of Making Submissio N Where an award is pleaded as a bar to an ac- tion of trespass, a place must be laid where the submission was entered int O Hare v George, Cro Eliz 66 2 Martin v Rexroad, 15 W Va 512; Dougherty v Stewart, 43 Iowa 648 Evidence that matters which are the foundation of an action had been sub- mitted to arbitration, and that there was an award in plaintiff's favor, is in- admissible under the general issu e If an award be relied on as a defense it must be specially pleade d Brown v Perry, 14 Ind 32 An award stands on the same foot- ing as a former judgment on the same matter in litigation, and therefore must be specially pleade d Lobdell v Stowell, 37 How Pr ( N Y, Chenango Co Ct) 88 Under the N Y Code Civ Pro, to action set out in the declaration and plea is bad, for failure to show the nature or amount of the award or in whose favor awarde d Heath v Doyle (RI, 1893), 27 At L Rep VirginiaIn assumpsit upon an award founded upon a parol submis- sion, where the general issue was pleaded, defendant may show that his submission was obtained by frau d Bierly v Williams, 5 Leigh ( Va) 700 In replevin, upon a plea of nil debet, plaintiff may give in evidence an award made since the distress taken to show that nothing was due from him to avowant. Turberville v Self, 2 Wash ( Va) 71 But an award made pendente lite cannot be given in evidence on a plea of nonassumpsit.

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(Ala) 231 California Holmes v Post Date: Fri, 1 Aug 2008 11:08:16 +0000
Harrison v Brock, I Munf ( Va) 22 In Canada it was held that a plea that, certain differences having arisen between plaintiff and defendant, which differences were referred to arbitra- tion, and an award was made con- cerning the same, but which does not state that the differences submitted were identical with those forming the present ground of action, such plea is ba d Calvin v McPherson, 4 U C C p 150 3 The Allegations Promise to Perfor M It is unnecessary for the de- fendant to aver a promise to abide by or perform the awar d 1 Performanc e The earlier English cases held that an award might be pleaded as a defense without alleging performance if the award gave a new duty in lieu of the former one, whether the award was for money or some collateral thing in satisfaction of the debt or wron g 2 Also, that it might be pleaded without alleging performance where the parties had mutual remedie S 3 The later English cases hold that if the action was to recover a debt, an award which ascertained the amount and directed pay- ment could not be pleaded as a defense without alleging payment, because the money was due with respect to the original debt until paid ; but that if the demand were for a debt and the award directed payment in a collateral way, the debt was gone, and only the substituted right remaine d 4 In America an award may generally be pleaded as a defense without alleging performanc e 5 1 Evans v M'Kinsey, Litt Se L Ca S (Ky) 262 2 Freeman v Bernard, i Sal K 69, I L d Ray M 247; Parsloe v Baily, i Sal K 76, 2 L d Ray M 1039; Crofts v Harris, Cart H 187; Allen v Harris, I L d Ray M 122 3 Gascoyne v Edwards, i Y J 19 4 Allen v ftlilner, 2 C J 47; Roulstone v Alliance In S Co, L R, 5 New York A plea of an award in pursuance of a parol submission is good without alleging performanc e Thus, in covenant on a lease assigning as a breach that defendant did not re- pair the premises, a plea averring that plaintiff and defendant submitted to arbitrators the adjustment of the amount in money of the repairs to be made, and that the arbitrators awarded that defendant pay to plaintiff $250, is a good bar without alleging perform- anc e Armstrong z Hasten, u John S ( N Y)i8 g One who pleads an award as a de- fense need not allege payment of the amount awarde d Giles Litho- graphic, etc, Printing Co v Reca- mier Mfg Co, 14 Daly ( N Y)475 Where an arbitrator has made a valid award on a cause of action sub- mitted, the award when pleaded is a valid defense without alleging per- formanc e Brazill v Isham, 12 N Y 9 In this case Chief Justice Gardner, criticising the doctrine laid down in Allen v Milner, 2 C J 47, says: " It is said to have been held recently in England that, where the action is to recover a debt, an award ascertaining the amount and directing payment cannot be pleaded in bar without al- leging performance, for the money un- til paid, is due in respect of the origi- nal Debt But if the demand be for a debt, and the award directs payment in a collateral way, the debt is gone, and the substituted right is all that remain S (2 Tyrwhitt 113; 2 Crom P JeR47) * * * Now, according to the law as heretofore understood, every valid award substitutes new rights and corresponding obligations, in place of those arising out of the subject submitte d And the substitu- tion is as real, though not as obvious, where a debt is determined and di- rected to be paid in coin, as where payment is awarded in chattel S In the latter case the original demand is gone, it is conceded; but it is extin- guished solely by the adjudication made in pursuance of the submission of the partie S The same result fol- lows, for the same reason, when pay- ment is directed to be made in the currency of the countr Y It is said that, in this instance, the award merely enforces the precedent duty to pay the mone Y But it does mor e It fixes the amount definitively, and cre- ates an obligation to pay in respect of the award, which is conclusive upon the debtoRThat is all that is ef- fected, in case of a money demand, by a judgment in a court of record S" II I ACTIONS TO ENFORCE SPECIFIC PERFORMANCE OF AWARD 1 Jurisdiction in Genera L An award may be specifically enforced in a court of equity though the submission to arbitration was made a rule of a court of common law ; * and also where the sub- mission is under a statute giving a method to enforce the award at common la W 2 New Hampshire Arbitration and award may be pleaded before per- formance of the award where the sub- mission was by mutual bonds to per- for M Pickering v Pickering, 19 N H 389 A plea of an award in pursuance of a submission by parol is a good de- fense without an allegation of per- formanc e Jessiman v Haverhill, etc, Iron Manufactory, i N H 68 Indiana In an action against a rail- road company to recover damages for the taking of plaintiff's land without compensation, an award setting up a submission of the question of damages to arbitrators and an award thereon states a good defense, though it does not allege performance of the awar d Terre Haute, etc, RCo v Harris, 126 Ind 7 A common-law award maybe plead- ed as a bar without alleging perform- anc e Walters v Hutchins, 29 Ind Arkansa S In this state it seems that if a lessor and a lessee submit matters in difference to arbitration, and an award directs the lessee to pay the same amount of rent and in the same manner as provided by the lease, such award could not be pleaded as a defense to an action of covenant on the lease for the rent without alleging performanc e Keeler v Harding, 23 Ark 698 Pennsylvania Where an award di- rects the performance of mutual and dependent acts, neither party can plead the award as a defense without at least a tender of performanc e Weichardt v Hook, 83 Pa St 434 Canad A To an action of trespass a plea of an award is a good defense without alleging payment of the dam- ages awarde d Adams v Ham, 5 U C QB 292 1 Blackett v Bates, 2 H M 610, II Ju R, N S 500, 12 Ju R, N S 874; and on appeal, L R, i C H 117, 35 L J C H 324; Hawksworth v Brammall, 5 My L C 281; Nickels v Hancock, i Ju R, N S 1149, 7 De g, M g 300 Grounds of Jurisdictio N The ground on which a court of equity interferes to decree specific performance of an award not made a rule of that court is, that the award is an agreement be- tween the parties to the submission, and that most, if not all, the principles regulating specific performance are ap- plicabl e Nickels v Hancock, i Ju R, N S 1149, 7 De g, M g 300 Setting up Invalidity of Awar d Where a bill is filed by one party to an award against the other to enjoin him from trespassing on land awarded to plaintiff, defendant may set up the invalidity of the award as a defens e It is not necessary that a cross-bill be filed to avoid the awar d Tate v Vance, 27 Gratt ( Va) 571 2 Walters v Morgan, 2 Co X 369; Auriol v Smith, I T R121 Delawar e Randel v Chesapeake, etc, Canal, i HarR(De L) 333 Marylan d Contee v Dawson, 2 Bland (Md)264; Allegre v Maryland In S Co, 6Har J (Md)4o8, 14 A M De C 289 Massachusett S Rowe v Williams, 97 Mas S 163; Cavanagh v Dooley, 6 Allen (Mas S) 66; Nute v Hamilton In S Co, 6 Gray (Mas S) 174; Pearl v Harris, 121 Mas S 390; Wood v Hum- phrey, 114 Mas S 185 Missour I Hug v Van Burkleo, 58 Mo 202; Biddle v Ramsey, 52 Mo 153; St Louis v St Louis Gas Light Co, 70 Mo 69; Strohmarir it. Zeppen- feld, 3 Mo App 429 New York Home In S Co v Morse, 20 Wal L (U S) 445; Sinclair v Tall- madge, 35 Barb ( N Y) 602; Hurst v Litchfield, 39 N Y 377; Greason v Keteltas, 17 N Y 491; Smith v Comp- ton, 20 Barb ( N Y) 267; Heath v New York Gold Exc H, 38 How Pr ( N Y C P I) 170 Pennsylvania Gray v Wilson, 4 Watts (Pa) 39; Mentz v Armenia F In S Co, 79 Pa St 478, 21 A M Rep 80 VirginiaCorbin v Adams, 76 Va 58 Wisconsi N Hopkins v Gilman, 22 Wi S 476 Agreement to Arbitrat e- Agreements to submit to arbitration are not specifically enforcible; and whether they are the result of a voluntary act of the parties or were embodied in a contract makes no differenc e 1 A Court of Equity has jurisdiction to enforce specific performance where the acts which the award directs to be done are such as, if prescribed by a contract, would be the proper subject for a decree of specific performance, 2 and where there is no adequate remedy at la W 3 Award for Payment of Mone Y Where, however, the award is for the payment of money, 4 or is of such a nature that an action for damages furnishes a complete and adequate remedy, an action for specific performance will not lie, and the plaintiff must seek satis- faction in an action at la W 5 United State S Tobey v Bristol County, 3 Story (U S) 800 1 Alabama Stone v Dennis, 3 Port. (Ala) 231 California Holmes v Richet, 56 Ca L 307, 38 A M Rep 54 Georgia Liverpool, etc, In S Co v Creighton, 51 Ga 95 Illinoi S Tobey Furniture Co v Rowe, 18 111 App 293 Indiana Kistler v Indianapolis, etc, RCo, 88 Ind 460; Bauer v Sampson Lodge, 102 Ind 262; Su- preme Council v Garrigus, 104 Ind Maine Hill v More, 40 Me 515; Robinson v Georges In S Co, 17 Me 131, 35 A M De C 239 Michiga N Callanan v Port Huron, etc, RCo, 61 Mich 15; McGunn v Hanlin, 29 Mich 480 New Hampshire March v Eastern RCo, 40 N H 548, 77 A M De C 732; Smith v Boston, etc, RCo, 36 N H 458 New Jerse Y Copper v Wells, I N J E Q 10 Ohio Connor z Drake, i Ohio St 167 Englan d Scott v Aver Y 5 H L Ca S 8 N 2 Burke v Parke, 5 W Va 122 Principle on which Specific Performance Grante d The specific performance of an award may be compelled in equity, on the principle that the award only ascertains the terms of a previous en- gagement between the partie S Wood v Griffith, I SwanSt 43, Wil S C C The principle on which a decree for the specific performance of an award may be granted is that such a decree is no more than the enforcement of a contract in writing, since the submis- sion is virtually a contract to do what shall be awarded, and since there is no reason why it is not as much the subject of equity power as if the con- tract were complete without the inter- ference of the arbitratoRJones v Boston Mill Cor P, 4 Pic K (Mas S) 507 " On no just ground can the case of an award to convey, made upon a written submission, be distinguished from an 'agreement' to conve Y The same moral obligation to convey, if the award was fairly made, would seem to rest upon the defendant in the one case as in the other, and good faith would require that he should carry into effect and perform faith- fully that which he had undertaken to perform in the one case as well as in the otheRAnd if he has not acqui- esced in an award fairly made, by judges of his own choosing, in good conscience, he ought to acquiesce, and ought to convey, if there be no equi- table objections to its executio N" Brown v Burkenmeyer, 9 Dana (Ky) 163 3 Smith v Smith, 4 Ran d ( Va) 95; Small wood v Mercer, I Wash ( Va) 290; Pawling v Jackman, Litt Se L Ca S (Ky) i; Jones v Blalock, 31 Ala 1 80 4 Hall v Hardy, 3 p Wm S 190; Jones v Boston Mill Cor P, 4 Pic K (Mas S) 512; Memphis, etc, RCo v Scruggs, 50 Mis S 284; Story v Nor- wich, etc, RCo, 24 Con N 94; Tur- pin v Banton, Har d (Ky)32o; Wood v Shepherd, 2 Patt H ( Va)442 5 Burke v Parke, 5 W Va 122 Although equity will not compel the Award Concerning Lan d The most usual case in which equity decrees specific performance of an award is where the award directs the performance of some act in regard to land, as the exe- cution of a conveyance or release thereof 1 Other Award S But the right to maintain a bill for specific per- formance of an award is not confined exclusively to the cases mentione d 2 specific performance of an award, when the damages resulting from the failure to perform are capable of be- ing exactly measured and complete redress is afforded at law, yet it is not enough to bar the interference of equity that the party may successfully maintain an action at law upon the award; he must be able to obtain by a verdict all that it was the object of the award to give hi M Kirksey v Fike, 27 Ala 383; Whitney v Stone, 23Cal275 Contract for Personalt Y Equity will not decree specific performance of a contract in regard to personal prop- erty where the bill does not allege that defendant is insolvent, or that the property is of a peculiar valu e Collins v Karatopsky, 36 Ark 316 1 Caldwell v Dickinson, 13 Gray (Mas S) 365; Hodges v Saunders, 17 Pic K (Mas S) 470; Jones v Boston Mill Cor P, 4 Pic K (Mas S) 507; Penni- man v Rodman, 13 Met (Mas S) 382; Davis v Havard, 15 S R(Pa) 169; Pawling v Jackman, Litt Se L Ca S (Ky) i; Brown v Burkenmeyer, 9 Dana (Ky) 161; Webb v Zeller, 70 Ind 408; Akely v Akely, 16 Vt 450; McNeil -v Magee, 5 Mason (U S) 244; Smallwood v Mercer, i Wash ( Va) 290; Memphis, etc, RCo v Scruggs, 50 Mis S 285; Hall v Hardy, 3 p Wm S 189; Blundell v Brettargh, 17 Ve S 241 Illustration S A bill in equity lies to compel the execution of a deed of land ascertained by an award of arbitra- tors, chosen by the parties to settle the boundary lines between their ad- joining lands, to belong to plaintiff Caldwell v Dickinson, 13 Gray (Mas S) 365 A court of equity will decree spe- cific performance of an award under a submission to arbitration of questions relating to the partition of land S Whitney v Stone, 23Cal275 Award for Sale of Land and Payment of Mone Y The mere fact that the spe- cific enforcement of an award concern- ing real estate, or of any agreement for the purchase or sale of real estate, involves the enforcement of an award to pay money, does not oust a court of equity of jurisdictio N Memphis, etc, RCo v Scruggs, 50 Mis S 292 Parties to an action on a mortgage agreed in writing to submit the action and other demands between them, in- cluding claims by and against each other for the payment of money, to persons named, and by agreement to perform their award; and the arbitra- tors awarded that one party should convey to the other the mortgaged premises, and that the other should pay certain sums of money, and that certain personal property should be divided between the M On a bill by the party to whom the conveyance was to be made seeking specific per- formance, the court strongly intimated that the awards for the conveyance of land can be specifically enforced, and said, " Under such circumstances if there were no other difficulties in the way, we might well be expected to hesitate to proceed in this cas e" It was decided, though, on other grounds that the bill could not be maintaine d Bubier v Bubier, 24 Me 2 Thus in Story v Norwich, etc, RCo, 24 Con N 94, it is said that if an award provides a party to it with a specific remedy appropriate to the subject-matter, or prescribes the exe- cution of a specific act other than the payment of money, equity will enforce the specific execution of the award as readily as it would the performance of an agreement.

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he is charged in the bill Post Date: Fri, 1 Aug 2008 10:55:11 +0000
In Blundell v Brettargh, 17 Ve S 241, and Hall v Hardy, 3 p Wm S 189, it is held that, the terms of an agreement to be ascertained by an award being so ascertained, it shall be specifically performed, if anything is to be done in speci e Award for Division of Personalt Y An action may be maintained in equity to enforce specific execution of an award Acquiescence in Award Unnecessar Y To give a court jurisdiction of a bill to enforce specific performance of an award it is not neces- sary that the parties should have acquiesced in the award or subse- quently agreed to its executio N 1 2 Time to Institute Suit. A court of equity will not interfere to decree a specific performance of an award where the party seek- ing it has been guilty of gross laches or long voluntary delay, and where there has been a material change of circumstances in the meanti Me If it appear that the voluntary delay on the part of the party seeking specific performance has been very injurious to the other party, so that it would be inequitable to decree specific performance, that alone is sufficient to induce the court to with- hold its ai d 3 3 The Bill A PARTIE S To a bill to specifically enforce an award it would seem that the arbitrator is not a proper party unless .he is charged in the bill with the commission of some frau d 3 b ALLEGATION S It is necessary for a party seeking to enforce specific performance to allege performance or a readiness on his part to perfor M 4 directing an equal division of shares among the parties to the submissio N Smith v Smith, 4 Ran d ( Va) 95 Enforcing Manner of Laying Track across Eight of Wa Y The award as to the manner in which one railroad company shall lay its track across an- other railroad company's right of way may be enforced by suit for specific performanc e Chicago, etc, RCo v Kansas City, etc, RCo, no Mo 510 Division of Partnership Propert Y A bill may be maintained by one partner to enforce specific performance by his copartner of an award for an equal division of the property and accounts belonging to the partnershi P Kirksey v Fike, 27 Ala 383 1 Jones v Boston Mill Cor P, 4 Pic K (Mas S) 507; Akely v Akely, 16 Vt 450 But see Thompson v Noel, i At K 62 " In the case of M'Cullough v My- ers," Har d (Ky) 206, it was contended that a court of equity could not in any case "decree the specific performance of an award, unless the party against whom the award was, after knowing what had been awarded, should have promised to perform it; and of that opinion was the court, who, on that ground, reversed the decree of the in- ferior court, and directed the com- plainant's bill to be dismissed; but considerable dissatisfaction being produced by the decision among members of the bar not employed in the cause, and the court feeling that the cause did not require them to decide that point, as the award itself was clearly void, withdrew the written opinion delivered, and substituted in lieu of it the one reporte d" Pawling v Jackman, Litt Se LCa S(Ky)2, not e 2 McNeil v Magee, 5 Mason ( U S) 244 Illustratio N Thus a delay of over three years in filing a bill for specific performance was held sufficient to prevent the court from making a decree in accordance with the prayer of the bil L Eads v Williams, 4 De g, M g 674, i Ju R, N S 193, 24 L J C H 531- 3 Stewart v East India Co, 2 Ver N 380; Mitf E Q P I by Jeremy 160, 161; Cooper E Q Pld g 178; Story E Q Pld g (loth e d) 231, 232 4 McNeil v Magee, 5 Mason ( U S) 256; Colson v Thompson, 2 Wheat.

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