Osborne v. Calvert
| Decision Date | 30 June 1880 |
| Citation | 83 N.C. 365 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS J. OSBORNE v. R. S. CALVERT and others. |
CIVIL
ACTION tried at Spring Term, 1880, of IREDELL Superior Court, before Gilmer, J.
Verdict and judgment for plaintiff, appeal by defendants.
Mr. J. M. Clement, for plaintiff .
Mr. J. M. McCorkle, for defendants .
The action is on an award made as alleged in the complaint and denied in the answer, pursuant to an agreement of reference the terms of which are set out in the condition of a penal bond executed by all the parties to one John W. Weaver, as follows:
The condition of the above obligation is such that whereas a certain matter of controversy has arisen between the above bounden about and concerning the dealings and mutual accounts, kept by and between themselves for the last several years; and whereas they have mutually agreed to refer and submit to the arbitrament and award of John A. Stikeleather, J. W. W. Weaver and T. M. Gill, arbitrators indifferently named and chosen by and between them, and all things and considerations relating thereto; and it is agreed that the said arbitrators shall hear such statements of the parties and hear such evidence as they may deem proper, and make their award in writing and deliver it to the parties, provided it be made in writing and delivered to the parties at the time and place of making their award: Now therefore if the above bounden parties well and truly abide by, observe, keep and perform all and singular the agreements recited in this condition, then the above obligation to be void; otherwise to remain in full force and effect.
+-------------------------------+
¦(Signed)¦J. E. Osborne, [seal,]¦
+--------+----------------------¦
¦ ¦T. J. Osborne, [seal,]¦
+--------+----------------------¦
¦ ¦J. C. Calvert, [seal,]¦
+--------+----------------------¦
¦ ¦R. S. Calvert, [seal,]¦
+-------------------------------+
Witness: J. W. Wilson.
The instrument containing the terms and conditions of the reference is ineffectual as a bond, because all the contending parties are obligees and all are answerable for the default of each, so that the person to whom any sum may be awarded to be paid by another, is himself equally bound to pay it, and hence the paying and receiving hand being one and the same, the matter is adjusted without any payment at all. In other words, the instrument has no legal operation for the security of any of the parties to the controversy proposed to be settled by the arbitration, and the obligee has no beneficial interest in what may be awarded. But the plaintiff and defendant have treated the recitals in the condition as evidence of their agreement and its provisions, and upon the issue as to the existence of such agreement the jury find in the affirmative, and no exception being taken, the enquiry into its validity as well as its terms is concluded by the verdict.
The main contention is as to the certainty and sufficiency of the award in form to embrace and determine all the matters referred, and the admissibility of extrinsic proof that such were considered and passed upon by the arbitrators.
Two of the arbitrators were introduced by the plaintiff and were allowed after objection to testify, and proved the following facts in connection with the making the award: The arbitrators met on the day when the agreement for submission was entered into, all the parties being present and on September the 28th, a few days thereafter, concluded their labors, made their award and delivered copies to each. They received and examined all claims presented, either individual or partnership, and heard the statements of the witnesses produced. The claims of the two original defe...
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...the arbitrators acted on.' Brown v. Brown, 49 N.C. 123 (1856). See Cheatham v. Rowland, 105 N.C. 218, 10 S.E. 986 (1890); Osborne v. Calvert, 83 N.C. 365 (1880); Walker v. Walker, 60 N.C. 255 (1864). The reason for this rule has been stated thusly: '(I)t often becomes necessary, in determin......
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...facts upon which they base their findings, or to assign any reason for their findings. It is said it is best they should not do so. Osborne v. Colvert, supra. Neither can an award be set aside where exceptions are made to the award upon the ground of error alone in the findings, unless they......
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... ... Shackelford v. Purket, 12 A. D. (Ky.) 426; ... Carter v. Shibles, 74 Me. 273; Walker v. Walker, ... Winston's Law (N.C.) 259; Osborne v ... Calvert, 83 N.C. 365; Burchell v. Marsh, 17 ... How. (U.S.) 350; 2 Greenl. on Ev. (16 Ed.), sec. 78 and ... notes; Allen v. Miles, 4 Har ... ...
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