Gordon v. Tucker

• Decision Date: 01 April 1830
• Citation: 6 Me. 247
• Parties: GORDON v. TUCKER & ALS
• Court: Maine Supreme Court

6 Me. 247

GORDON v. TUCKER & ALS

Supreme Judicial Court of Maine, York

April, 1830

[Syllabus Material]

IN debt on an arbitration bond, it appeared, on oyer of the condition, that the defendants, who were named as private individuals, mutually agreed with the plaintiff " to submit to the determination of Moses Bradbury, Gibeon Elden and Jabez Bradbury, the claim of the said Reuben Gordon for all damages which have been occasioned, or which may hereafter be occasioned to the land of said Reuben Gordon, by the erection and continuance of the dam across Saco river at Union falls, to the height the same is now erected; the report of whom or the major part of whom to be final and conclusive between the parties; " and covenanted " well and truly to perform, fulfil and keep the award," &amp c.

The defendants pleaded, first, that the arbitrators " made no such award, report or determination of and upon the premises as was contemplated in the condition of said writing obligatory, and in conformity thereto." The plaintiff replied that they did make such award, setting it forth in haec verba:--" We the subscribers, a committee appointed by Reuben Gordon of Hollis, on the one part, and Jonathan Tucker of Saco, and other proprietors of the Union falls mills in said Hollis, on the other part, having duly notified the parties therein concerned, met and viewed the premises agreeably to our appointment, and having heard their several pleas, proofs and allegations, and maturely considered the same, do award and determine, and this is our final award and determination, that Reuben Gordon recover of Jonathan Tucker of Saco, and other proprietors of the Union falls mills, the sum of one hundred and twenty five dollars damage, and costs of reference taxed at twenty-five dollars and fifty-seven cents." Which was signed by all the arbitrators. To which the defendants answered by a general demurrer.

The defendants pleaded, secondly, that the plaintiff " had not well and truly performed, fulfilled and kept the award" of the arbitrators, " in all things on his part to be performed, & c., as specified in the counterpart of the same writing obligatory," made on the same day. The plaintiff replied that he had so kept the award. The defendants rejoined that the plaintiff had not " made executed and delivered to the said defendants a good and sufficient deed, conveying to them the right to flow the premises set forth in the counterpart of said writing obligatory, agreeably to the award" & c. And the plaintiff hereupon demurred in like manner.

Plea in bar are adjudged good.

Goodwin for the defendants, contended that the award was bad. 1st. It is not made between the parties to the submission. The obligors in the bond have not described themselves as proprietors of the Union falls mills, nor as part owners either of the mills or of the dam; nor have they stipulated in behalf of the proprietors; neither does it appear by the bond that any of the obligors are owners of the mill; and the award is made on a separate paper. Now parol proof is not admissible to connect the award with the bond, nor to rectify any mistake of this kind. Montague v. Smith, 13 Mass. 396; Woodbury v. Northy, 3 Greenl. 85. Neither does it appear by the award that these obligors were heard by the arbitrators; nor is any thing awarded for them to perform. They are not bound by the award, not having bound themselves for the proprietors; nor are the proprietors bound, they being strangers to the submission. Eveleth v. Chase, 17 Mass. 458; Cutter v. Whittemore, 10 Mass. 442; Kyd on Awards, 103-105; Boston v. Brazier, 11 Mass. 447.

2. The award is not made of and upon the premises. The arbitrators have not reported what sum they allowed for damages up to the time of submission; nor what for future damages; nor for what consideration the sum named in their award was allowed. Bacon v. Dubarry, 1 Ld. Raym. 246; 12 Mod. 129; Kyd 139.

3. It is not mutual. Nothing is awarded to be done by Gordon; nor does it appear for what cause the money is to be paid; nor what rights or privileges are to accrue to the defendants by the payment; neither could this submission and award, taken together, be successfully pleaded in bar of any future action or complaint for flowing the plaintiff's land, brought by himself; much less would it bar his grantee, who could learn nothing from the award. Peters v. Pierce, 8 Mass. 398; Stain v. Wilde Cro. Jac. 352; Ormelade v. Coke, ib. 354; Lumley v. Hutton, ib. 447.

4. It is not final. It creates no lien or incumbrance on the plaintiff's land; nor does it give the defendants any rights beyond what were already secured to them by the statute regulating mills. The bond is not an instrument of defeazance, but a penal bond. It does not provide that the defendants shall use the land of the plaintiff, on any conditions whatever; and the award leaves the whole subject open to the same litigation as if no bond had been made. Erskine v. Townsend, 2 Mass. 493; Harrison v. Phillips Academy, 12 Mass. 456; Jones v. Boston Mill Corporation, 4 Pick. 507; Palmer's case, 12 Mod. 234; Veale v. Warner, 3 Saund. 293, note 1.

5. It is at least void so far as costs are concerned; the arbitrators having no power to award these, unless specially given; which was not the case here. Cutter v. Whittemore, 10 Mass. 442; Bussfield v. Bussfield, Cro. Jac. 577; Abrahat v. Bragdon, 10 Mod. 201; Pinkney v. Hale, 1 Lev. 3; Dolbier v. Wing, 3 Greenl. 421.

6. The replication is bad, because it assigns as a breach the non payment of damages and costs. Being bad in part, it is wholly defective and insufficient. And this fault may be shown either upon general demurrer, or in arrest of judgment. Heard v. Baskerville, Hob. 232; 5 Com. Dig. Pleader F. 14, C. 47; Cooke v. Whorwood, 2 Saund. 337; Pope v. Brett ib. 293, note 1; Hayman v. Gerrard, 1 Saund. 102 note 1; Fox v. Smith, 2 Wils. 267; Addison v. Gray, 2 Wils. 293; Roberts v. Marriot, 1 Mod. 269; Hill v. Thorn 2 Mod. 309; Thirsby v. Helbot, 3 Mod. 272; Meredith v. Alleyn, 1 Salk. 138; Barrett v. Fletcher, Cro. Jac. 220; 1 Nelson's Abr. tit. Arbitr. M. pl. 1, 2, 3, 4; Kyd 200; 1 Chitty's Pl. 643; Earl of Manchester v. Vale, 1 Saund. 28; Perkins v. Burbank, 2 Mass. 81; Webber v. Tivill, 2 Saund. 127.

J. & E. Shepley, for the plaintiff, to show that the objection of want of parties to the award was not open upon these pleadings, cited 1 Chitty's Pl. 476; 2 Saund. 184; 1 Saund. 63. To the goodness of the award they cited Gaylord v. Gaylord, 4 Day 422; Butland v. Conway, 16 Mass. 396; Peters v. Pierce, 8 Mass. 398; Forsyth v. Shaw, 10 Mass. 253; Jones v. The Boston Mill Corporation 6 Pick. 148; Strong v. Ferguson, 14 Johns. 161. And to the faultiness of the defendant's second plea they cited 2 Chitty's Pl. 477; Beane v. Farnham, 6 Pick. 272.

OPINION

WESTON, J. delivered the opinion of the Court at the adjournment in August of the ensuing May term in Cumberland.

From the award set forth in the replication, it sufficiently appears that it was made between the parties to the bond of arbitration now in suit. There are indications to this effect, which are not to be mistaken. The plaintiff is therein named as one of the parties, and Jonathan Tucker, who first executed the bond set forth on oyer, is also named as one of the other parties. The arbitrators are the same, and their signatures are arranged to the award, as they are in the submission. They award damages to Reuben Gordon; and his claim for damages was the subject matter submitted to their determination, by the agreement of the parties before us. So many marks of identity might have been satisfactory, even if there had been recited in the award circumstances of a more prominent character, inconsistent therewith. Effect is given to deeds, although the premises conveyed cannot be located in accordance with every particular in the description. Worthington v. Hylyer, 4 Mass. 196. But the description of the parties in the award may, for any thing which there appears, be exactly coincident with the parties named in the bond. Jonathan Tucker and others, particularly named in the bond, are the parties of whom damages are demanded. In the award, the parties against whom damages are awarded, are described as Jonathan Tucker and other proprietors of the Union -falls mills. Now it is no where averred in the pleadings, nor does it otherwise appear, that the defendants are not the proprietors of those mills. Whatever is deducible from the case before us, would rather establish, than disprove the fact. The arbitrators were evidently of that opinion. In the condition of the bond, the damage is stated to have been occasioned " by the erection and continuance of the dam across Saco river at Union falls." It would certainly not be unreasonable to presume that the dam at Union falls was erected and continued by the proprietors of Union falls mills. It not appearing that there was any other submission, to which the award could apply; we are satisfied that it must be regarded as having been made between the parties to the bond of arbitration now in suit.

It is objected that the award is not made, " of and upon the premises." It is urged that the award is to be taken as an instrument by itself; that it does not refer to the bond and that it cannot be connected therewith by parol testimony. How far parol testimony, for this purpose, might be introduced in a case like this, it is not necessary to determine, as we entertain no doubt that, by fair implication, the award does in its terms refer to the bond, and follows the submission therein made. It is impossible to read them both without perceiving, to every reasonable intent, their connection and identity. This point being established, the award is to receive...