Dolbier v. Wing , 3 Me. 421 ( 1825 )

Mellen C. J.

after stating the pleadings, delivered the opinion of the Court as follows.

On the special demurrer in this case the first question is whether the plea is not bad in point of form, and for the causes assigned. The correct course of pleading would have been for the defendant, after setting forth the condition of the bond, and the award, as he has done, to have demurred. This would have presented to the Court the simple question whether the award is legal and good; and had the demurrev oftlieplaintiffbeen general, that would be the only question now'. But called on, as we are by this special demurrer, to pronounce our opinion as to the sufficiency of the plea in point of form, as well as substance, we feel bound to sustain the demurrer. 1 Chitty Pl. 216, 519. Cowper 684. No issue could have been taken on any of the aver-ments of the plea, proper for thejury to try; they consist of nothing but denials of those things which had not been alleged on the part of the plaintiff; and of the legality of the award; because those facts, thus denied, were not expressly stated in the award. The plea professes to do nothing but to draw questions of law from the proper tribunal, for the purpose of submitting them to the decision of the jury. Such a plea cannot be maintained.

But if the demurrer had been general, we think the plea must have been adjudged insufficient, on the ground that the award is good and legal. It is true, it is very concise and informal; but as awards are made by judges elected by the parties, courts should sustain them when the principles of law do not clearly forbid it. The general objection to the award is, that it does not comprehend all the subjects submitted. The arbitrators commence their award on the back of the bond by saying that they £‘met according to appointment on the within business and agreed,” &c. This expression seems equivalent to the words “ of and “ conccerning the premises,” — or “ pursuant to the submission.” which have been deemed sufficient — Kyd 221, 222. The cross claims for damages, are of such a peculiar nature that the allowance of one, necessarily proves that the other could not be allowed, nor have any legal nor equitable existence. Hence it is clear that as the arbitrators found that the labor of Dolbier had rendered the land more valuable than it was before; they have thereby decided that Wing could have no claim against him for damages on the ground of his having injured it. Thus as to every dispute and claim existing at the time of submission, the award is as broad as the submission. The other subject on which the arbitrators were authorised to make their award was whether Wing should sell and convey any part of the land to Dolbier at a price to be fixed by them and paid by him. It does not appear that there was any previous contract or obligation express or implied in relation to this subject; but even if there was, we must presume they considered all the business on which they met; and the silence of the award as to a sale and conveyance, amounts to evidence that they did not mean that he should make any such conveyance. Thus all the subjects submitted have been expressly or virtually decided by the arbitrators; and the award is good, as to all but the costs, according to the principles laid down in Kyd on Awards 172, 182, and authorities there cited. See also Buckland v. Conway 16 Mass. 396, and 1 Barnw. & Ald. 106. As to the costs, the law seems unsettled; and the sum being small, the plaintiff is willing to waive the inquiry as to its allowance, and consents to its disallowance. As to the damages the award is good.

Plea in bar adjudged insufficient