Ross v. Overton

• Decision Date: 08 November 1802
• Citation: 7 Va. 309
• Parties: Ross v. Overton
• Court: Virginia Supreme Court

7 Va. 309

Ross v. Overton

Supreme Court of Virginia

November 8, 1802

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The Overtons brought debt against Ross, upon an arbitration bond, and declared for 6,0001. on a bond dated the 25th day of ___, in the year 1784, and conditioned for the performance of an award, concerning the payment of the rent and putting some improvements on a tract of land, merchant mill and fishery of the plaintiffs, which had been leased to Ross, so as the award was made ready to be delivered to the parties on or before the 15th day of June, thence next ensuing. The declaration states an award as follows:

" Bonds having been entered into by Elizabeth Overton and Richard Overton of the one part, and David Ross of the other part, dated the 22d day of May, 1784, whereby the said parties bind themselves mutually to abide by and perform the award and arbitrament of Joseph Jones, James Madison and Henry Tazewell, esq'rs, arbitrators, indifferently chosen by them of and concerning a controversy subsisting between them relative to a lease or agreement made and entered into the 24th day of August, 1783, between Richard Morris, on behalf of the said Elizabeth and Richard Overton, and the said David Ross, respecting a tract of land, a merchant-mill, fishery, & c. adjoining the City of Richmond, as is particularly specified in the said lease or agreement, so as the award be made and given up in writing, under their hands and seals, on or before the 15th day of June next ensuing, the date of the said bond. We, the arbitrators afore-mentioned, have met and considered the lease or agreement aforesaid, and we find that in the said lease or agreement the following stipulations are contained: After the said Ross accepts of a lease of the land adjoining Richmond, a grist-mill thereon, canal, fishery, & c. and all other advantages and conveniences of what kind soever attendant thereon, he covenants as follows: That he will make the improvements herein-after named, to wit, a convenient bakehouse, two stories high, with three ovens, a miller's house, 32 by 16, one story high with two chimneys of stone or brick, lathed and plaistered and finished in a workmanlike manner, a kitchen, 16 by 16, with a stone or brick chimney, a stable of convenient size, and also a cooper's shop: That he will open the canal, extend and improve it, so as to admit a plentiful supply of water, as far as the situation and plan of the said mill will admit with convenience, to pay taxes, and to deliver the said mill, together with the improvements aforesaid at the expiration of the said term of seven years, in proper tenantable repair. It appears by the admission of each party, that in January, 1784, by an extraordinary and unexpected movement of the ice, the mill-house was entirely demolished, and the said Ross had it not in his power to prevent the same. In pursuance of the submission aforesaid, we the said Joseph Jones, James Madison and Henry Tazewell, do award and determine, that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall comply with and perform the other covenants contained in the said lease." Pleas, conditions performed; and no award: Issue on both; and then the record, after stating that the jury were sworn, proceeds thus:

" The declaration on which the said issues were joined, stated the date of the bond to be the 25th day of ___ 1784; and after the jury were sworn to try the said issues, the counsel for the plaintiff with the assent of the defendant's counsel, amended the said date at the bar, so as to be the 22d day of May, 1784; but the counsel for the plaintiffs, having thereupon suggested that the amendment was made through mistake, moved that the date of the said bond should be restored to what it originally was when the jury were sworn, to wit, the 25th day of ___, 1784; which motion was opposed by the defendant's counsel, but granted by the Court."

Verdict for the plaintiffs upon both issues; and the defendant moved to arrest the judgment:

1st. Because, no date to the writing obligatory in the proceedings mentioned is set forth in the declaration, the month in which it was executed not being therein stated. 2d. For, that the award appears on the face of it to have been made on a different obligation from the one declared on. 3d. For, that the breach of the condition of the writing obligatory in the proceedings mentioned, is not set forth with sufficient certainty.

The District Court entered judgment for the plaintiffs, and Ross appealed to this Court.

Judgment affirmed with costs.

Hay, for the appellant.

There is a variance between the bond declared on, and that recited in the award: For, the declaration states the date as of the 25th day of 1784, and the award as of the 22d day of May, 1784. This misrecital is fatal. Turner v. Moffett, 2 Wash. (VA) 70. For, the declaration states the breach in not performing an award made upon another bond, than that stated in the declaration: Which latter, according to this record, is not alleged to be violated.

Duval, on the same side. The award states the facts; and it is evident, that the arbitrators have drawn an inference, from those facts, erroneous in point of law. For, the injury done to the premises was owing to the act of God, which excused the covenant. Thus, if a house fall by tempest, it is not waste in the tenant. So, if there be a contract for the purchase of a house, which is burnt before a conveyance, the purchaser will not be bound to pay the purchase money, Stent v. Baily, 2 Eq. Cas. Abr. 689; and, there are various instances where it has been held that inevitable accidents will excuse the tenant. [Mingay, argo. in Doe v. Sandham, citing Brown v. Quitler,] 1 T. R. 708. It is like the case of a common carrier, who, though generally held to stand insurer, is yet excused by the act of God. [Forward v. Pittard,] 1 T. R. 28. The arbitrators, therefore, were clearly mistaken in their inference from the facts; and the Court may relieve against it. Jerdone v. Holt, [Saturday, Dec. 18, 1790,] in this Court.

Wickham, on the same side. The Court may correct the error in the opinion of the arbitrators, as it appears from the face of the award. [Pleasants et al. v. Ross,] 1 Wash. (VA) 158. The sum awarded is assessed upon all the covenants, and not for the rent only.

Call, contra.

The recital in the award of the date of the bond does not vitiate. 1. Because it is true: For, the defendant does not shew any other bond; and, therefore, it must necessarily apply to this, as the Court will not presume any other. 2. Because, the substance of the bond and award agree; which proves the reference was to this very bond, and to no other And it is enough if by reference it can be ascertained. Deane v. Cunliffe, in this Court. M. S. [Thursday, April 20th, 1797]. The names of the parties, the sums, and the principal matters of the bond appear in the award; which sufficiently identifies the bond referred to. 3. Because, the arbitrators have found the true date of making a bond, which bore an uncertain date: thus rendering that certain, which was uncertain before: And they clearly had a power to do so. For, arbitrators may find the true date, in the same manner as a jury; who are not bound down to the date expressed in the instrument, but may find the actual date: which is the day of the delivery. For, wherever the date is uncertain, void, or omitted, it may be supplied by pleading, or finding. [Cromwell v. Grumsden,] 1 Ld. Raym. 335, 6 Mod. 244; Goddard's Case, 2 Co. 4; 1 Nels. Abr. 388. 4. Because, there is no repugnancy, between the date expressed in the bond, and that recited in the award. For, it states, that the bond was dated, and not that it bore date, on the 22d of May, 1784: But, it is the delivery which constitutes the date, and not the expression in the bond: So, that the date is independent of the words; and, therefore, as it is a substantive fact, it may be found, without assailing the bond itself. Consequently, the stating the actual date did not produce any inconsistency. 5. Because, in cases of this kind, the question is not, when the deed was made, but whether the party actually did make it? Goddard's Case, 2 Co. 4. 6. Because, the bond bears date in 1784, and the arbitrators merely add the time of the year: So, that they cannot be said to misrecite; for, the year, which is all the date contained in the bond, is truly recited; and the addition of the month will not prejudice; because, it comports with the bond, and does not produce a variance: Which is the only ground upon which misrecitals are held to vitiate. 7. Because, the pleas admit the award. For, the plea of conditions performed goes to the award stated in the declaration; because, when he says he has performed the conditions of the bond, he virtually affirms, that he has performed the award, which is alleged to proceed from it. The same observation applies to the other plea, of no such award as that stated in the declaration. For, there the plea goes to the award, which is alleged expressly: After which, it is too late to object a variance between that, and the bond. Hubbard v. Blow, and Brown v. Ross, M. S. in this Court. In this respect it differs from Turner v. Moffett, 2 Wash. (VA) 70: Because, there was no subsequent plea, or admission of the fact in that case. 8. Because, it has been expressly decided, that it does not vitiate. Style 87; Allen 87; 1 Ventr. 184: Which are conclusive...