Supreme Court of Rhode Island, 1859

Sprague v. Hull

Supreme Court of Rhode Island · Decided March 6, 1859 · Ames

6 R.I. 27

Counsel

Peckham, for the defendant: — 1st. No common-law action can be maintained upon an agreement to submit a cause or controversy, under a rule of court, to referees; the parties contemplating only the statute proceedings and remedy, and the agreement, when the report of the referees is established, being merged in the judgment of the court. Rev. Stats. ch. 188, § 3. The court can vary its execution so as to conform it to the necessity of each case. Ibid. ch. 194, § 17. See Caldwell on Arbitration, 359, n. 1; Webster v. Lee, 5 Mass. 337 ; Sargent v. Hampden, 32 Maine, 78. 2d. From its terms and obvious import, this covenant has been fully performed by the defendant, by his submission of his rights to the award of the referees named therein, and to the judgment of the court upon their report; and the whole force of his agreement is thereby exhausted. If there is any difficulty in enforcing the award, the remedy is not, certainly, upon a covenant which the defendant has performed. Sargent v. Hampden, 32 Maine, 78; Deerfield v. Arms, 20 Pick. 480; Allen v. Chase, 3 Wisc. 249. 3d. The action derives no countenance from the last clause of the covenant, providing that the referees may proceed ex parte, if the parties, upon being notified, do not appear before them, and that notwithstanding such non-appearance, the report shall be final and conclusive upon the parties; all this being merely what the law would have directed and adjudged upon a submission to a rule of court, without such stipulation. 4th. The agreement of submission itself looks to an execution, and not to an action, for the enforcement of the award, and provides in express terms for it; thus showing, that the parties contemplated only the statute mode of enforcing the award. But if an action at common law may be brought, in some form, to enforce the award, it is clear that covenant is not that action.Bowen, for the plaintiff: — The covenant contains the usual clause, that the report of the referees shall be final and conclusive. All that the court, to which the report was made, could do by its execution, that is, to issue execution for the plaintiff's costs, has been done; and the remedy for the non-performance of the specific act awarded for the defendant to do, is upon his covenant, to abide by the award.

Opinion of the Court

Ames, C. J.

There is no express stipulation in this covenant of submission that either party will perform the award of the referees named therein, 'nor, from what is stipulated, can any personal covenant to that effect be fairly implied. It is an ordinary agreement, under seal, it is true, to submit a certain action then pending between the parties, and other matters, and especially a boundary line of their respective estates, about which a dispute existed, to certain referees, who were to act under a rule *32 of the court of common pleas. Every clause in the agreement points merely to this; and, certainly, there is not one which looks farther than the remedy by execution for the enforcement of the award. Without doubt, where this is deficient, as, for the purpose of the specific performance of any other act than the payment of money, it in general is, a court of law, by damages, or a court of equity, by a decree for specific performance, would furnish to the plaintiff a remedy, based upon the award, suited to his case ; but, because the agreement of submission is sealed, it by no means follows that an action of covenant upon it is such remedy. It may be, if the covenant contains a stipulation to perform the award; for, defective as the execution of a common-law court must necessarily be to enforce all that may be awarded under so general a submission as this, we see no objection to the parties providing, by personal covenants to perform the award, for contingencies which an ordinary execution cannot reach. But then there must be such a covenant before the party can claim, in an action of covenant, damages for its non-performance ; and a mere covenant to submit to a rule of court is not, and has not been deemed to be, such a covenant.

The evidence objected to by the defendant in the court below, so far from tending to prove a breach of the covenant upon which he was sued, clearly showed that he had performed it by submitting his rights to the final award of the referees in whose choice he had concurred, and did not tend to support the issue upon which damages were assessed against him. The court erred in admitting it for such a purpose, and, as the verdict shows, to the injury of the defendant. The verdict must, therefore, be set aside, and a new trial granted.

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