Head v. Muir & Long
| Decision Date | 25 January 1825 |
| Citation | 24 Va. 122 |
| Parties | Head v. Muir & Long |
| Court | Virginia Supreme Court |
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This was an appeal from the Superior Court of Chancery of Fredericksburg. The case was this:
Head and Long having sundry suits between them, depending in the Superior Court of Law for Spottsylvania, agreed to refer all matters in dispute between them, in these suits to Briggs and Stevenson, whose award was to be made the judgment of the Court; and if they should disagree, the said arbitrators were to choose an umpire. The award, thus rendered, was to be made the judgment of the Court. This reference was made an order of Court, on the 27th of October, 1819. The arbitrators disagreeing, appointed Lewis their umpire; who made an award in favor of Long, for $ 138 50, with interest, & c. This award was made the judgment of the Court, on the 26th of October, 1822.
Head filed a bill in the Chancery Court, to injoin this judgment, setting forth the following reasons: that the arbitrators, after having examined the accounts on both sides, came to a determination to render an award in favor of the complainant, for $ 215 42, on the 29th of June, 1820; and Briggs was requested by Stevenson, to draw up an award to that effect: but a short time after, as the complainant was informed, Stevenson declined signing the award, alledging that Long requested him not to do so, because there was an item of $ 90, in relation to a Bank transaction allowed to the complainant, which ought not to be admitted: that afterwards, on the 17th of October, 1820, another order was made, without the knowledge of the complainant, in the said Superior Court, enlarging the submission to all matters in dispute between the parties; and he did not know of its existence, until after the rendition of the judgment: that he was informed by Briggs, that Lewis was chosen as umpire to decide on the aforesaid $ 90, which, as he understood, was again decided in his favor: that the complainant and the said Long had executed their bond to Bignall and West for $ 580, which became due on the 24th day of June, 1821, and which was given for the purchase of the old play-house lot; and which bond ultimately came into the possession of Long, by assignment; one half of which, the complainant was liable to pay, on account of their purchase: that Long contended, that the bond ought to be brought into the account between the parties; which was objected to by the complainant, because it was not within the reference, and because it was not due; in which he was sustained by the arbitrators: But, after the bond became due, Long renewed his pretension to charge the complainant with half of this bond: The complainant again resisted this pretension; but, if Long was permitted to charge him with half of the bond, he claimed to shew, that he had paid $ 25 in part thereof, and had other just setoffs against the bond; but this was denied him, upon a misapprehension that these items were of anterior date to the 29th of June, 1820, and therefore, ought not to be allowed: that, when the complainant called the attention of the arbitrators to the vouchers which he had exhibited, he was informed by Stevenson, that the arbitrators and umpire had decided, and would not re-consider it: that a mistake had also been committed of $ 60, which ought to have been credited to the complainant: that Long transferred whatever might be due upon the bond aforesaid to Muir, and execution had issued upon the judgment, for his benefit: that the complainant, being about to go upon business of importance to Richmond, on the first day of the last term of the Superior Court of Spottsylvania, called on Briggs to know whether the award would be made out and returned to that term, and was informed, that he, (Briggs,) was not certain whether it could be made out and returned, or not; but that it was much pressed for, and he was ready to act at any time: that the complainant then informed Briggs, that he wished very much to be present, to get the errors corrected, and the first day of the term was the only day that he expected to be present during the Court: that he then called on Stevenson, as he had repeatedly done, relative to the reference; but, for some cause or other, he did not seem inclined to attend to the subject: that the complainant, taking it for granted, that the business would not be attended to, set out for Richmond on the next day, and did not return home until the last day of the term: But, contrary to the complainant's expectation, the award was made by the umpire, dated the 22d day of October, 1822, (though the umpire appears not to have been chosen until the 23d,) and returned to Court, and judgment rendered thereon, on the 26th of the same month, being the last day of the term; whereby the complainant was deprived of all opportunity of making any objection to the award, in the Superior Court. He therefore prayed, that Long & Muir might be made defendants to his bill: that the judgment aforesaid might be injoined, until the matter could be heard in equity, & c.
The injunction was awarded.
Muir answered, 1. By pleading the award and judgment in bar of any further investigation of the subject. 2. That it is true, that the respondent, (Muir,) is entitled, by transfer from Long, to the benefit of the said judgment, or to any balance due him from the complainant: that his interest in the subject arose after the investigation of the arbitrators had commenced, and they had partially acted: that he is not acquainted with all the accounts between the parties, and cannot answer the bill as to the errors stated in the proceedings and calculations of the arbitrators; but, that he does not admit them, or believe them to be correct: that, with regard to the play-house bond, the set-offs claimed by the complainant were taken into consideration by the arbitrators, and, after mature examination, rejected: that the complainant not only had an opportunity of objecting to the award, but counsel actually appeared for him, and did object to entering the award; and, it was not until authorities were produced by the respondent's counsel, and after a day's consideration, that it was received and the judgment given.
Long did not answer the bill.
On motion of the plaintiff, the plea of the defendant Muir was set down to be argued; and afterwards, on motion of the defendant, the injunction was dissolved. From this order, the plaintiff appealed.
Johnson, for the appellant, contended:
1. That the circumstance of a judgment having been rendered at law, on the award, is no bar to equitable relief, in a case like the present. The Court will not require reasons why no defence was made at law, because this is not an award under the statute, but at common law. The Courts of Law and Equity have concurrent jurisdiction. That Courts of Equity are not very strict, as to the time when objections are made, even to awards under the statute, is proved by Kyd on Awards, 231-3.
2. The plea is defective in not averring, that the umpire acted in pursuance of the submission.
3. The arbitrators exceeded their power, in taking into consideration the play-house bond. The bond did not become due until the 24th of June, 1821, and the orders of reference were made in 1819 and 1820. This subject, therefore, could not come within the scope of the orders.
As to the second order of reference, it was made by the counsel of Head, without his consent. The power of an attorney is confined to the matters in controversy, and the bond was not a matter in controversy, because it was not then due.
4. The arbitrators and umpire were guilty of misbehaviour; 1. In refusing to sign the award. Arbitrators ought to be impartial, and small matters are sufficient to vitiate an award. Even a private interview with one of the parties will be sufficient. 2. In refusing to take into consideration the set-offs against the play-house bond. 3. The arbitrators state, that they had disagreed and chosen an umpire, when they had in fact agreed. Arbitrators are functi officio, after they have once agreed.
5. Supposing the award to stand, the setoffs against the play-house bond ought to be allowed in equity, as they were not considered by the arbitrators.
Stanard, for the appellees.
All the objections urged by Mr. Johnson, might have been made at law, and a party ought not to be permitted to neglect the opportunity of legal defence, and then come into the Court of Equity on the same grounds. The objection, that the award was out of the submission, because it related to matters not in suit between the parties, if it be well founded, might have been made at law. But, it was not well founded. The arbitrators were not confined to the suit of Head v. Long. The first order was, indeed, so limited; but, the second extended to " all matters in controversy between the parties."
The case of Flournoy v. HolcombeMunf. 34, proves that, where questions, relating to awards, are considered and decided at law, equity will not interfere. These matters were before the Court of Law. The answer avers it; and the documents exhibited with the bill, prove it. But, if they were not, no excuse has been given why they were not used at law. The only apology pretended by the complainant, is, that he was compelled to be absent during the trial. But, of what importance was his presence, when he had no witnesses or other evidence?
The objection, that one of the arbitrators agreed to the award, and afterwards refused to sign it, may receive the same answer that applies to all the rest. It was an objection that might have been made in the Court of Law. But, the objection is unsound. A referee may change his opinion before the award is signed.
Nor is ...
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