Hays v. Miller

• Decision Date: 26 May 1859
• Citation: 12 Ind. 166
• Parties: Hays v. Miller
• Court: Indiana Supreme Court

12 Ind. 166

Hays v. Miller

Supreme Court of Indiana

May 26, 1859

From the Dearborn Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

W. S Holman, for appellant.

OPINION

Davison J.

Miller sued Hays upon an award. In the complaint, it is alleged that the parties on, &c., at, &c., entered into a written agreement to submit certain matters of difference therein specified, to the arbitrament of William Jessup, J. S. Ferris and Samuel Morrison; that the arbitrators thus appointed met on the day and at the place designated in the submission, and after hearing the allegations and proofs touching the matters of difference submitted, &c., did, on the 16th of September, 1854, make an award in writing, of the making of which the defendant afterwards, &c., had notice, &c.

Copies of the submission and award were filed with the complaint and are set out in the record. By the submission, the arbitrators were to meet at the house of Samuel Morrison, on the 6th of September, 1854, "and arbitrate all debts, dues, notes, judgments, and demands whatever, of every kind and nature, between the parties." The award is as follows:

"We, the arbitrators, having taken upon ourselves the burden of the reference, and having duly considered the allegations and proofs of the parties, do make and publish this our award, of and concerning the matters to us referred, viz.; We find for Enoch Miller 4,329 dollars, including the Enoch Hays judgment in the United States District Court, and the judgment of Jacob Hays against Benjamin Redman, Jun., in replevin; and that the parties pay all costs of this examination equally. [Signed] William Jessup, Jabez S. Ferris, Samuel Morrison."

Defendant demurred to the complaint; but his demurrer was overruled, and thereupon he answered. His answer contains fourteen paragraphs. Demurrers were sustained to the 6th, 7th, 10th. 12th, 13th. and 14th. The other paragraphs led to issues of fact. The Court tried the cause, and found for the plaintiff 4,447 dollars, that being the amount of the award and interest thereon from its delivery. Judgment was accordingly rendered.

The complaint is said to be defective, because it does not aver that the award was made of and concerning the matters in controversy submitted to the arbitrators. This objection is not tenable. The award, a copy of which is filed with the complaint, contains the proper averment, and having been so filed, became a part of that pleading. 2 R. S. p. 44, § 78,--Womack v. Womack. 9 Ind. 288.--Womack v. Dunn, id. 183.

But it is insisted that the award itself is defective; that it is uncertain, and not in accordance with the submission. As we have seen, it says: "We, the arbitrators, &c., do make and publish this our award of and concerning the matters to us referred, viz.: We find for Enoch Miller 4,329 dollars, including the Enoch Hays judgment in the United States District Court, and the judgment of Jacob Hays against Benjamin Redman in replevin." This award is not, in our opinion, objectionable on the ground of uncertainty. It is for a sum certain, and its certainty is not affected for the reason that in making up the aggregate amount, it includes the judgments to which it refers.

But the inquiry arises--Have the arbitrators, by including them exceeded their authority under the submission? Evidently, these judgments were not originally between Miller v. Hays; but, in view of the whole award, may we not intend that, at the time of the submission, they had, by assignment, or in some way become existing demands between the parties? If this can be done, then the award may be sustained. It is said to be a maxim of the Courts, never to raise a presumption for the sake of overturning an award; but, on the contrary, to make every reasonable intendment in its support. Cald. on Arb. 279. and cases there cited. And, further, it has been decided that "where the words of an award are so comprehensive that they may take in matters not within the submission, yet it shall be presumed that nothing beyond it was awarded, unless the contrary be expressly shown." Solomons v. M'Kinstry, 13 Johns. 27. In looking into the award in question, we find this statement: "We, the arbitrators, &c., do make, &c., this our award, of and concerning the matters to us referred." The words "matters to us referred" obviously mean the matters included in the submission. Hence, it must be inferred that the arbitrators, having considered these judgments, regarded them as matters properly within the scope of the authority under which they acted. There is, it seems to us, enough on the face of the award, until the contrary be shown, upon which to rest the presumption that the judgments were legitimately before the arbitrators, and that in the award there is nothing outside the submission. Cald. on Arb. 283.--Spear v....