Bailey v. Stewart , 3 Watts & Serg. 560 ( 1842 )

The opinion of the Court was delivered by

Gibson, C. J.

The defendant’s obligation was an informal one,, but the effect of it was to bind him for Fisher’s performance of his covenant to abide by the award. Fisher and the plaintiff submitted their controversy to arbitrators by writing under seal, and mutually covenanted to pay whatever should be awarded. Fisher died before award made; his administrators consented that the arbitrators should nevertheless proceed; and the questions are, whether his death was a revocation of the submission; if it was, whether it was a forfeiture of the defendant’s bond that Fisher would perform the award.

Death is clearly a revocation where there is not an express stipulation that the submission shall survive; as was held in Rhodes v. Haigh, (3 Dow. & Ry. 610), and many other cases. And such a stipulation must be explicit. In Blundell v. Brettargh, (17 Vez. 232), the parties had agreed for themselves, their heirs, executors, administrators or assigns, to pay the value of certain property when ascertained by the award of particular arbitrators delivered to the parties by a day mentioned; and Lord Eldon held that as the delivery was to be to themselves, the true construction of the agreement was that they themselves would do such acts as should be prescribed by an award thus delivered; or that if they happened not to live long enough after the delivery to do them in person, then that their representatives should do them in their stead; not that the binding of their representatives made them parties fo the submission. It will be perceived, therefore, that such binding does not extend the duration of the submission beyond the joint life of the parties where the award is to be delivered to' themselves; but the law undoubtedly allows it to be further extended by an agreement for delivery to the parties or their representatives ; as in Tyler v. Jones, (1 Barn, & Cr. 144, S. C. 4 Dow. & Ry. 740). But in the agreement before us, there is not a word about delivery to representatives; nor is it even provided that they should do an act of performance. They are not so much as named; and the submission was exclusively between the parties themselves. The death of Fisher, therefore, was a revocation of it; but was it a breach of the defendant’s bond 1

It is settled that a feme’s revocation by marriage is such a breach. That was determined in Charnley v. Winstanley, (5 East 266). But marriage is a voluntary act; and it is not doubted that the voluntary disability of a party bound to perform a condition, is itself a breach of it. 1 Inst. 1.21. But no such consequence follows a disability which is involuntary. If the performance of a condition become impossible by a dispensation of Providence, the penalty is saved; as \a Thomas v. Howell, (1 Salk. 170), in which a condition to marry .a devisor’s nephew before the age of twenty-one, was held not to have been broken by the devisee’s marriage with another at the age of seventeen, the nephew being then dead.

In the present case the condition of the defendant’s bond became impossible by Fisher’s death before award made; the submission was revoked; nothing was to be performed; and the bond was discharged. What matters it, then, that Fisher’s administrators agreed that the arbitrators should proceed on the terms of the obsolete agreement ? They might bind themselves to perform t'he award; but they could not call back the defendant’s responsibility. He had bound himself for Fisher’s performance, not theirs; and his extinct obligation could not be revived. The evidence of the administrators’ assent, and the proceedings of the arbitrators, therefore, were properly excluded from the jury.

Judgment affirmed.