New York Supreme Court, 1812

Freeman v. Adams

New York Supreme Court · Decided May 15, 1812

9 Johns. 115

Counsel

Weston and %, R. Shepherd, in support of the demurrer, contended that no action could be maintained on the penalty of art arbitration bond, where the award was not made within the time originally limited by the condition of such bond; but that if any action would lie, it must be on the new agreement for enlarging the time of making the award, the first agreement having expired by efflux of time. They cited 3 Term Rep. 592. Brown v, Goodman, in note. TidcL’s Pr. 756., Skinner and Van Buren, contra, insisted that the objection was purely technical, and ought not to prevail, unless supported by good authority. The case of Brown v. Goodman was from manuscript, and no other case is to be found in the books to support the doctrine. In Evans v. Thompson,* it was decided merely, that the new agreement virtually incorporated the antecedent agreements of the parties. By the enlargement of the time, the second is substituted in the place of the first, and the parties stand in statu quo, on the original agreement.†

Opinion of the Court

Per Curiam.

The single question presented by the pleadings is, whether an action will lie upon the penalty of an arbitration bond, for the non-performance of an award, when it appears that the award was not made within the time specified in the bond, and when it appears that the parties, by an agreement under their hands and seals, endorsed on the bond, had enlarged the time, and that the award was made within such enlarged time. The case of Brown v. Goodman, (E. 29 G. K. B. cited in a note to 3 Term Rep. 592.) is a solemn determination of the It. B. upon the very point, and made after argument upon demurrer. By that decisipn, a suit will not lie upon the bond. The party has another remedy upon the submission implied in the agreement to enlarge the time. This case has been since considered *117as sound law; (Tidd's K. B. 756. 5 East, 191.) and as the principle is incontrovertible, it must govern this case. The case of Philips v. Rose (8 Johns. Rep. 392.) is an authority in this court to show that if a contract be subsequently changed, you must declare otherwise than on the contract itself. There is a wide difference between this case of a suit to enforce the bond, in consequence of such agreement, and a plea of a discharge by the obligee from a strict and literal compliance with the obligation, according to the doctrine in Fleming v. Gilbert. (3 Johns. Rep. 528.)

Judgment for the defendant.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.