5 N.Y. 422, Haggart v. Morgan

Citation:5 N.Y. 422
Party Name:HAGGART and DUNN v. E. D. and G. D. MORGAN, survivors of JACOB BRANDEGEE.
Case Date:September 01, 1851
Court:New York Court of Appeals

Page 422

5 N.Y. 422

HAGGART and DUNN

v.

E. D. and G. D. MORGAN, survivors of JACOB BRANDEGEE.

New York Court of Appeal

September 1, 1851

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COUNSEL

J. H. Patten for appellants.

Albert Mathews, for respondents.

GARDINER J.

The motion for a nonsuit was properly overruled. First, because the agreement to arbitrate, only entitled the party to damages, but was no bar to an action. (Mitchell v. Harris, 2 Ves. Jur. 129, Sumner's Ed. and note; 8 T. R. 139; 2Story's Eq. Jur. § § 1457-8.) Second, because the arbitration clause in the building agreement between the plaintiffs and Brandegee, is limited to "any dispute which should arise respecting the work or finish of the building. " The plaintiffs have brought their action, among other things, for the last instalment due on the completion of the work. This subject is not within the letter, or spirit, of the covenant to arbitrate. Third, because, if it should be granted that the plaintiffs had agreed to arbitrate on this subject, they have done so, as the defendants insist, and as appears by the evidence. There was no evidence, nor did the defendants suggest, that the plaintiffs had by their misconduct or neglect prevented the making of a valid award within the time fixed by the bonds of the parties. The neglect, for aught that appeared, was attributable to the arbitrators, and not to the parties. No action, therefore, could have been sustained against the defendant on the bond of submission. And as the articles contained a penalty, and an express covenant by the defendant to pay the instalment for which the action was brought, the plaintiffs could at their election sue for either. (1 Chitty's Plead. 135.) Again, the defendant had simply denied the execution of the bond, and thereby admitted the averment in declaration, that $800 was due and owing to the plaintiffs on these articles. After an admission of record to this effect, a nonsuit, for the reason urged, would have been somewhat singular.

The exception to the charge was too general. It has over and again been held, that a party can take nothing by a

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general exception to a charge containing distinct propositions, unless he is prepared to maintain that each of them is erroneous, and to his prejudice.

The defendants at the trial offered to prove "that at the time of taking out the attachment mentioned in the pleadings, and at the time of the giving of the bond in suit, the debtor, Brandegee, was not a non-resident of the city of New York, but a resident. That he had been absent about three years, in attending a law-suit at New Orleans, and returned...

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