Owen v. Boerum

There is no sufficient objection to the award on which the judge directed the verdict for the defendant. The submission embraced the settlement not only of the accounts bétween the parties, but of all claims of each upon the other. The disputes between them at that time, as far as we can see, all grew out of their agreement in respect to'the green houses and the cultivation of the plants which are the subject of the present suit. From this resulted finally claims as to the ownership of the plants «fee., which might be regarded in different aspects, either as claims for accounts of the value or the proceeds of the property, or as a charge of a tortious conversion. It would be doing violence to the settled rules of construction in such cases, and to the benign and favorable interpretation of such instruments which the courts have always adopted, to hold that either kind of claims or demands, or a right of action which might be brought in either form, did not come within the terms of this submission.

There is no proof that either of the parties desired the award before the day of its date, or of any demand upon the arbitrators on the day set in the submission for making the award. There is no proof upon the subject, on either side, ex*196cept that it was delivered when it was called for, and that it bears date on the 23d September, the day after the time set in the assignment for the award to be ready for either party who should demand it. ' This is not sufficient to show that the award was not ready on that day. When it was called for it was ready, and if this was not a literal compliance with the submission, it will at any rate be presumed, until the contrary is affirmatively shown, that the arbitrators performed their duty and had the award ready within the time set. The mere date at the end of the paper is not enough to establish the contrary.

¡Nor is there any objection to the finality of the award. It leaves nothing to be done to dispose of the whole matter in controversy except mere ministerial acts, and that has been repeatedly held no objection to an award. (12 Wend. 377. 2 Hill, 75.) It was claimed that because the submission was by a sealed instrument, the award must also be under seal; but this is not the rule. A seal is not requisite in such cases, unless the submission stipulates for that. Whatever forms are required by the terms of the submission must be observed, but there is no connection between the submission and the award that would make it necessary that one should be under seal because the other was.

The evidence offered, to impeach the award, was also rightly rejected. Even fraud or corruption cannot, according to the better opinion, be set up against an award, in an action at law. The party averring it must bring his suit or in some proper way assert his claim to have the award set aside. (5 Wend. 518.) Certainly nothing else not appearing on the face of the award can be pleaded or proved against it. (12 Wend. 158.)

And the evidence which the defendant offered, so far from proving corruption or partiality, would have shown, if any thing, that the particular matters referred to were not considered or examined or brought before the arbitrators at all. This is clearly immaterial. If the submission included these subjects it is of no consequence to the validity of the award that any particular subject to which it extended was not laid before the *197arbitrators. (Wheeler v. Van Houten, 12 John. 311. Fidler v. Cooper, 19 Wend. 285.)

After a party has agreed to submit all his claims upon another to a domestic tribunal of their own choosing it would be exceedingly unjust to allow him to remove a portion of his demands and make them the matter of a subsequent suit. The only question is whether the demands were within the jurisdiction of the arbitrators. If the parties placed them there they must take the consequences if they do not invoke the exercise of all the powers of their umpires, or bring to their notice all the subjects which they are appointed to finally determine.

No errors were committed at the trial, and the motion for a new trial must be denied with costs.

Brown and Emott, Justices. Rockwell, J. died after the argument, and before the decison.]