Union Insurance v. Central Trust Co.

In this case the elaborate opinion of the presiding justice, delivered upon the decision of this controversy before him, covers all the points *22presented, and needs no elaboration. The serious questions, at first blush, relate to that part of the agreement providing for the deposit of $50,000 as security for the performance of any award made against Dimick, and the construction to be given to section 2384 of the Code, in connection with it. It is true that the clause mentioned provides in terms for the award to be made “in said arbitration” payable by the Central Trust Company “in accordance with any judgment that may be entered upon such awards, ” which is supposed to limit the right of the plaintiffs under the agreement to awards only. The fallacy of this view consists in disregarding the provisions of the section named, which were a part of the law of the state when the agreement was entered into, and which were intended to apply to such agreements, in justice to the parties making them, so that the capricious, or ill-advised, or unreliable litigant should not be permitted to indulge in any of these follies or traits, and go forth untrammeled by responsibility. The language employed by the codifiers giving a right of action against the sureties, if any, upon the submission, added, to leave no doubt of the.intention to cover the wl ol - subject, “or any instrument collateral thereto;” and these provisions, by op ration of law, are ingrafted upon the agreement as effectually as if expressed in hceo verba. ■Thus, properly construed, the agreement is an indemnity against any loss by reason of the revocation, and with which the fund is burdened. Indeed, if strict literal construction should be demanded of the disputed clause, it may well be said that the costs and damages provided for and given to the non-revoking party are an award, made by statute in “said arbitration,” particularly when, as suggested, that law becomes a part of the agreement. It is not deemed necessary to pursue this subjectfurther. The judgment appealed from must be affirmed, with costs.

(concurring.) Serious doubts arise upon the arbitration agreement whether this action can be maintained for the appropriation of the securities deposited for the only purpose of satisfying any award which might be made to the payment of the expenses incurred prior to the revocation of the submission,- which prevented an award, and terminated the authority of the arbitrators. But the interests of these parties will be promoted by avoiding a definite solution of.these doubts at the present time; for, if it should- be held that the plaintiff had no right of action, a reargument of the appeal would become necessary in this court, which would produce a period of considerable delay; and after that, and the decision of the appeal, the case without doubt would be taken-to the court of last resort by the defeated party. It will advance the final determination of the action to place it in a condition for taking that final step as early as practicable, and that can be done by waiving all these doubts, and affirming this judgment at once. It will abridge the time very materially for the pendency of the action, and result in an' early, as well as final, decision. For these reasons it is considered best to concur in the conclusion of the opinion of Mr. Justice Brady, and affirm the judgment.