Blackwell v. Goss

116 Mass. 394, 1874 Mass. LEXIS 125

• Court: Massachusetts Supreme Judicial Court
• Decided: December 11, 1874
• Status: Published

Opinion

Ames, J.

This is a case in which an oral submission would be binding. Of course in such a case parol evidence must be admissible for the purpose of showing what it was that was submitted. Homes v. Aery, 12 Mass. 134. Eveleth v. Chase, 17 Mass. 458. Cook v. Jaques, 15 Gray, 59. Byam v. Robbins, 6 Allen, 63. Otherwise it could hardly be an oral submission. It must be taken as shown therefore by competent evidence that the horse which the plaintiff had bought and paid for had been returned to the seller, the defendant, who agreed to furnish another that should be satisfactory. The horse so returned having died before the proposed substitute had been furnished, the controversy arose that was submitted to arbitration. The plaintiff’s claim must have been that upon the return of the horse it became the defendant’s property, and that its death was the defendant’s loss, leaving the plaintiff in the position of an intending purchaser who had paid for an article of property which he had not yet received. The award does not in terms answer the question as to the ownership of the horse at the time of its death, but in substance and effect it answers it by sustaining the plaintiff’s claim. An award in favor of the plaintiff can have no other meaning than that the horse at the time of its death was the property of the defendant; and that as the defendant had been paid for a horse not yet delivered he was equitably indebted to the plaintiff.

We see no cause for the objection that the award did not conform to the submission, or failed to include all that was submitted. Exceptions overruled.