Fletcher v. Webster

87 Mass. 566

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1863
• Status: Published

Opinion

Metcalf, J.

There are various objections to the award which it is not necessary that the court should consider; for we are of opinion that it is fatally defective in not being certain and final.

The sum which the award requires the defendant to pay to the plaintiff, as the excess, if any, of the contract price over the sum of $612.50, &c., and also the sum which the award requires the plaintiff to pay to the defendant, if the sum already paid, and the amount of lien claims and costs, and the aforesaid sum of $612.50 shall be more than the contract price, are both entirely uncertain, and cannot be made certain by any means afforded by the award.

In the case of Waite v. Barry, 12 Wend. 377, arbitrators awarded that A. should pay to B. a certain proportion of a prize drawn in a lottery, after deducting the usual percentage, with the amount already paid. The court decided that as nothing appeared on the award showing the amount that had been already paid, or from which it could be ascertained by calculation, the award was bad for want of certainty, and for not making a final disposition of the matters submitted. “ It is essential to the validity of an award,” said Sutherland, J., “ that it should make a final disposition of the matters embraced in the submission, so that they may not become the subject or occasion of future litigation between the parties. It is not indispensable that the award should state in words or figures the precise amount to be paid. If nothing remain to be done, in order to render it certain and final, but a mere ministerial act or an arithmetical calculation, it will be good. But no means whatever are afforded by the award, either by reference or otherwise, of determining the amount which may already have been paid by the defendant. If it is disputed, it can be ascertained only by a regular litigation. From the nature of the case, conclusive evidence upon this matter, of which the court can judicially take notice, cannot exist. The award, therefore, does not terminate the controversy between the parties.”

We think the decision in that case was right; and as we cannot distinguish the present case from that, in principle, we must hold that the award is not a bar to this action, being of no legal validity. Exceptions overruled.