Bent v. Erie Telegraph & Telephone Co.

• Decision Date: 26 February 1887
• Citation: 10 N.E. 778,144 Mass. 165
• Parties: BENT v. ERIE TELEGRAPH & TELEPHONE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 165

10 N.E. 778

BENT v. ERIE TELEGRAPH & TELEPHONE CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1887

COUNSEL

B.F. Butler,

J.N. Marshall, and Wm. H. Anderson, for defendant.

OPINION

This is an appeal, founded on matter of law apparent upon the record from the decision of the superior court overruling the defendant's motion to accept and confirm the award of the arbitrators in said action, and to enter judgment thereon in favor of the defendant, and setting aside said award. It is rightfully before this court by appeal. Pub.St. c. 188, § 12; Skeels v. Chickering, 7 Metc. 316; French v Richardson, 5 Cush. 450.

The demands and controversies were submitted by the parties to the judgment of the arbitrators, without restriction or condition, and their judgment or award thereon is conclusive and binding. It cannot be disturbed for mere error of judgment upon any matter within the scope of the submission. They are the final judges both of law and fact. Bigelow v. Newell, 10 Pick. 348; Boston Water-power Co. v Gray, 6 Metc. 131; Morse, Arb. 314. It is only when questions of law are, by the terms of the submission, or by the award itself, expressly reserved for or submitted to the judgment of the court, or when it is manifest from the award itself that the arbitrators intended to decide as a court of law would, not meaning to make conclusive their own judgment, and setting forth the principles upon which they decide, the court will revise it or either party has the right to call on the court to set it aside if error of law is apparent. Ellicott v Coffin, 106 Mass. 365; Gardner v. Boston, 120 Mass. 266; Stickles v. Arnold, 1 Gray, 418; Nelson v. Andrews, 2 Mass. 164, 167.

It is clearly settled that an award is prima facie binding upon the parties. Every reasonable intendment is to be made in favor of an award. Boston Water-power Co. v. Gray, 6 Metc. 131, 165; Strong v. Strong, 9 Cush. 560. The statutes do not require that the agreement to extend the time for filing the report of the arbitrators shall be acknowledged. Pub.St. c. 188, §§ 2, 5. The language of a statute is not to be enlarged or limited by construction, unless its effect and plain meaning require it. Doane v. Phillips, 12 Pick. 226. "If any part of a statute is obscure, it is proper to consider the other parts, for the words and meaning of one part of a statute do frequently lead to the sense of another." 4 Bac.Abr. 645; Holbrook v. Holbrook, 1 Pick. 250; Cleaveland v. Norton, 6 Cush. 384. "Every clause and word of a statute shall be presumed to have been intended to have some force and effect." Opinion of Justices, 22 Pick. 573; Com. v. McCaughey, 9 Gray, 296. The court has never decided that such an agreement should be acknowledged. The determination of that question was not necessary to the decision, and was not decided in the cases relied on. Heath v. Tenney, 3 Gray, 380; Burghardt v. Owen, 13 Gray, 300; Franklin Min. Co. v. Pratt, 101 Mass. 359. See St.1786, c. 21; Commissioners' Reports on Revision, Gen.St. 325.

The original agreement of submission was executed in conformity to law. If the agreement extending the time should have been acknowledged, and if in fact it was not, it was matter or defect which might have been waived, and it was waived, by the parties. Morse, Arb. 173, 284; Russ.Arb. (5th Ed.) 141; Slater, Arb. (2d Ed.) 27-30; Brooke v. Bannon, 3 Watts & S. 382; Newcomb v. Wood, 97 U.S. 581; Storer v. McGaw, 11 Allen, 529; Hallett v. Hallett, 7 Dowl. 389; Campbell v. New England Mut. Ins. Co., 98 Mass. 400; Cahoon v. Harlow, 7 Allen, 151.

If the legal question saved to the plaintiff on the defendant's liability to him, upon the facts found and reported, for the balance claimed as due on the note, could be legally considered as reserved for or submitted to the court, or subject to its revision, still the decision of the arbitrators thereon was right. The plaintiff could not introduce secondary evidence of the note. He had delivered it up for a consideration agreed upon, intentionally, without fraud, and without reserving any further right to its control or possession. Bowker v. Childs, 3 Allen, 434, 437; Blade v. Noland, 12 Wend. 173; Broadwell v. Stiles, 8 N.J.Law, 58; Joannes v. Bennett, 5 Allen, 169, 173. Where a note is delivered up by the holder to the maker intentionally, and without fraud, upon part payment thereof, with the intention thereby to discharge the debt, the debt is discharged, and no action can thereafter be maintained to recover any alleged balance thereon. Ellsworth v. Fogg, 35 Vt. 355; Kent v. Reynolds, 8 Hun, 559; Beach v. Endress, 51 Barb. 570; 1 Add.Cont. § 364. When the holder of a note, desiring to forgive the debt, delivers it to the maker, with the intent thereby to discharge the debt, the debt is discharged, and no action can thereafter be maintained upon the note itself, or upon the debt which was the consideration for which the note was given. And neither can any such action be maintained where the holder of a note voluntarily destroys the same. Vanderbeck v. Vanderbeck, 30 N.J.Eq. 265; Booth v. Smith, 3 Woods, 19. "It is certain, indeed, that if the obligee declares by parol that he forgives the debt, and delivers the bond to the obligor, the debt is extinguished." No consideration was necessary to support such a transaction, for it was executed. Wentz v. Dehaven, 1 Serg. & R. 317; Lord HARDWICKE, Kendel v. Micfield, 2 Eq.Cas.Abr. 617. The cancellation of a bond, or its delivery to the obligor or even to a stranger, with the intent that it shall be canceled, amounts to an extinguishment of the debt. Albert's Ex'rs v. Ziegler's Ex'rs, 29 Pa.St. 50; Licey v. Licey, 7 Pa.St. 251.

The superior court had no authority to set aside the award. It could only accept, reject, or recommit the same. Pub.St. c. 188, § 10; Eaton v. Hall, 5 Metc. 289.

SUPPLEMENTAL BRIEF FOR DEFENDANT.

The arbitrators had no authority to file an amendment to their report. They were functi officio. Morse, Arb. 226; Bayne v. Morris, 1 Wall. 496; Doke v. James, 4 N.Y. 567; Bigelow v. Maynard, 4 Cush. 317; Ward v. Gould, 5 Pick. 291; Aldrich v. Jessiman, 8 N.H. 516.

The cases of Lapham v. Norris, 10 Cush. 312; Caverly v. Bushee, 1 Allen, 292; and Hartford v. Homestead Co., 130 Mass. 447,--cited by the plaintiff, are civil actions, and have no application to this case. This is not a "civil action," but a "civil proceeding." Neither party can be said to be plaintiff or defendant. The proceeding derives all its force and effect from the mutual assent of the parties. The tribunal is a special one, of their own selection. Bond v. Fay, 1 Allen, 212.

"Where referees award concerning the costs, the judgment must conform to their award." Pub.St. c. 198, § 22; Warren v. Waldron, 108 Mass. 232; Bacon v. Crandon, 15 Pick. 79; Nelson v. Andrews, 2 Mass. 167. The award in regard to the expenses, etc., and who should pay the same, was within the submission, and the arbitrator's finding is conclusive and binding. They are judges of both law and fact. The question is not open for the consideration of the court. Ellicott v. Coffin, 106 Mass. 355, 357; Gardner v. Boston, 120 Mass. 266; Woolson v. Boston & W.R.R., 103 Mass. 580; Stickles v. Arnold, 1 Gray, 418. It does not appear, in either of the cases cited by the plaintiff on the liability of the defendant for the alleged balance due on the note, that action could be maintained for such balance, when an agreement, voluntarily made, without fraud or mistake, for a part payment of a note, had been executed, and the note delivered up in pursuance of such an agreement, with the intent thereby to discharge the debt.

D.S. & G.F. Richardson and M.F. Dickinson, for plaintiff.

An appeal can only be had for errors of law appearing on the record. An appeal is like a writ of error in this particular. Pub.St. c. 152, § 10; Knowles v. Bachelder, 106 Mass. 343; Patton v. City of Springfield, 99 Mass. 627; Bowler v. Palmer, 2 Gray, 554; Peck v. Hapgood, 10 Metc. 172; Cushing v. Field, 9 Metc. 181; Ward v. American Bank, 7 Metc. 486; Day v. Laflin, 6 Metc. 280; Lanesborough v. County Com'rs, 22 Pick. 278. In the present case the remedy of the defendant was not by appeal, but by bill of exceptions. Pub.St. c. 153, § 8. See Standish v. Old Colony R. Co., 129 Mass. 158; Gen.St. c. 114, § 10; Id. c. 115, § 7. It cannot be said that the want of jurisdiction, which appears as a matter of law on the record, was the ground the court went upon in dismissing the award. The common mode of procedure, where a party is aggrieved by a ruling of the superior court dismissing an award, is by bill of exception. Abbott v. Dexter, 6 Cush. 108; Wesson v. Newton, 10 Cush. 114; Heath v. Tenney, 3 Gray, 380; Bond v. Fay, 1 Allen, 212; Fay v. Bond, 3 Allen, 433.

Any agreement to extend the time within which an award shall be made and returned will not be valid, unless made in writing, and signed and acknowledged in the same manner, and with the same formalities, as the original submission. Pub.St. c. 188, § 5; Franklin Min. Co. v. Pratt, 101 Mass. 359; Sperry v. Ricker, 4 Allen, 17, 18; Burghardt v. Owen, 13 Gray, 300, 302; Rice v. Clark, 8 Vt. 104; Lazell v. Houghton, 32 Vt. 579; Tudor v. Peck, 4 Mass. 242 . Neither the arbitrators nor the superior court had any jurisdiction after the expiration of the six months legally fixed in the original agreement for submission as the time for reporting the award. Franklin Min. Co. v. Pratt, 101 Mass. 359; Custy v. City of Lowell, 117 Mass. 78; Abbott v. Dexter, 6 Cush. 109; Heath v. Tenney, 3 Gray, 381.

The agreement of submission must be signed in the presence of the justice of the peace, as well as acknowledged before him. Pub.St. c. 188, § 2; Campbell v. Upton, 113 Mass....