Freeman v. Adams

9 Johns. 115

• Court: New York Supreme Court
• Decided: May 15, 1812
• Status: Published

Opinion

Per Curiam.

The single question presented by the pleadings is, whether an action will lie upon the penalty of an arbitration bond, for the non-performance of an award, when it appears that the award was not made within the time specified in the bond, and when it appears that the parties, by an agreement under their hands and seals, endorsed on the bond, had enlarged the time, and that the award was made within such enlarged time. The case of Brown v. Goodman, (E. 29 G. K. B. cited in a note to 3 Term Rep. 592.) is a solemn determination of the It. B. upon the very point, and made after argument upon demurrer. By that decisipn, a suit will not lie upon the bond. The party has another remedy upon the submission implied in the agreement to enlarge the time. This case has been since considered as sound law; (Tidd's K. B. 756. 5 East, 191.) and as the principle is incontrovertible, it must govern this case. The case of Philips v. Rose (8 Johns. Rep. 392.) is an authority in this court to show that if a contract be subsequently changed, you must declare otherwise than on the contract itself. There is a wide difference between this case of a suit to enforce the bond, in consequence of such agreement, and a plea of a discharge by the obligee from a strict and literal compliance with the obligation, according to the doctrine in Fleming v. Gilbert. (3 Johns. Rep. 528.)

Judgment for the defendant.