Boynton v. Frye , 33 Me. 216 ( 1851 )

Shepley, C. J.

— By a contract under seal, these parties with two other persons agreed to submit to the decision of arbitrators, the claims set forth in a written instrument annexed to the submission. The matters therein submitted, are damages “for the loss, destruction, deterioration, and loss of rents and profits of three fourths of a shingle mill, which they own in common with another.” And they allege “that it has been valuable and productive property, but has for the last five and a half years been made of no value,” by back water rendering the mill useless.

The plaintiff also “ claims damages in his individual right, for the permanent injury done to the said mill privilege, of which he claims to be the sole owner, in consequence of the obstructions aforesaid.”

Although the latter claim made is for damages for a permanent injury to the privilege yet both the claims are for damages for injuries already suffered.

The matters submitted were damages occasioned by the past misconduct of the defendant. The submission does not embrace a claim for damages for his future misconduct. Nor is the regulation of the water rights of the parties or the future use of the water embraced in it.

The award is of certain sums to the plaintiff and to the two other persons respectively “ in full satisfaction of all claims set forth in the claims annexed to said bond, and that said Frye shall be entitled to draw more or less water through the canal now cut from the Sebasticook river to his said tannery, than he has heretofore drawn. The said arbitrators meaning and intending to decide, that said sums shall be in full satisfaction of all past and future damages, that the drawing of water from the Sebasticook river, and emptying the same into the brook below said shingle mill, by the said canal, as now cut, might occasion the said claimants or either of them.”

The arbitrators have exceeded their authority, by assuming to regulate the future use of the water, and by awarding damages to be occasioned by such future use.

An award may be good in part, and bad in part, when the facts are not so connected as to render the whole void. In this case the award is made expressly “ in full satisfaction of all past and future damages, and there are no means afforded by which the amount awarded for the past and for the future damages can be ascertained and separated.

The award is therefore wholly void.

This conclusion is resisted by the counsel for the plaintiff, because, as he correctly states, no such issue is presented by the pleadings.

There having been no joinder of any of the pleas, except the general issue, the others cannot be noticed, unless they be considered as in the nature of brief statements. It is not essential to notice them, or to inquire if they can have any effect, for they would not present any issue on the validity of the award.

The plaintiff’s right to recover is founded upon the award. One count in his declaration is upon it. In the other counts a forfeiture is claimed as liquidated damages for a neglect or refusal to perform the award. The submission and award are in one count set forth. To support his action upon any count the plaintiff must prove an award made in conformity to the submission ; and that the defendant after notice had neglected or refused to perform it.

This he does not and cannot do, by the production of an award not made in accordance with the submission, but void for excess of authority.

By the provisions of our statutes a payment of money into Court, or an offer to be defaulted for a certain sum, does not operate as an admission of the plaintiff’s claim, while such an offer to be defaulted does authorize the plaintiff to take judgment for that sum, although he may fail to establish his claim.

The plaintiff will be entitled to judgment, for the sum of $27,10, with costs to the time of such offer to be defaulted, and the defendant will be entitled to costs since that time.