SAVAGE, Ch. J.
Each count in a de~laration is supposed to contain a distinct cause of action ; and must, therefore., be answered by the defendants, or judgment may be entered thereupon by default. The defendants so consider these counts in their pleas. The first count is simply on a bond for. the payment of money. The plea to that count pre-supposes that it is on a bond of-submission to arbitrators, and sets up a revocation in bar. This, of course, is no answer. If .the bond, described in the first count, be, in fact, the same qs the. one set forth in the, second, and the. defendant had wished to answer it, by this plea, his course was to have craved oyer, and spread the bond, with the condition, upon the record. This would have given application to the defence presented by the plea. As we find it upon the record, it is certainly no answer to the first count. The plaintiff is, therefore, entitled to judgment upon that count; but I think it right that the defendants have leave to amend, on payment of costs.
The first ground of special demurrer to the 2d and 3d pleas, is directly answered by the case of Allen v. Watson, cited in the argument; and the 2d ground is virtually answered by the same Case. The matter excepted to, thirdly, is surplusage, and might be, stricken put, without impairing ,the effect of the plea. The allegation that the defendants-
revoked the bonds, is void, and the revocation, is left to ope-' rate upon the powers of the arbitrator
The 4th cause supposes the instrument of revocation so utterly unintelligible as to fail altogether in the effect ascribed to it by the pleas. I am not satisfied that there is, as contended upon the argument, any reason fpr a greater strictness of interpretation in this case, than in the ordinary one of a contract between the parties. If the latter were left to be governed by the rules of syntax, it would, many times, be [341]*341impossible to arrive at the real intention.
But it is contended, fifthly, that the prayer of the plea should have been only in bar qf the award—not the action, It is true that, by the revocation, the penalty of the bond is forfeited, and an action lies upon it to recover the damages actually sustained. But the pleas answer the action, as one brought upon the bond an¡d award. The plaintiff should have assigned, for breach, the revocation itself) had she intended to avoid these pleas. As she has not done so, but goes for the non-performance of the award, the plea is right. It is a full and perfect answer tq an action resting, as this does, upon the validity of the supposed qwqrd : whereas, had the prayer been simply in bar of the award, it would have been bad, as professing to answer a part of the count only.
To the 6th cause, it was correctly answered, in argument, that nothing appears, shewing the submission to have been made a rule of Court. Had the rule been entered, a revocation, afterwards, would have been a contempt of Court, for which the party would have been punished; but, till made a rule, it is a mere agreement, in its nature revocable.(p)
I am, therefore, of opinion that the defendants are entitled to judgment on the 2d and 3d pleas, with leave to the plaintiff to amend, on the usual terms. -
[342]*342Wood worth, J.
The first count is on a bond for the payment of money. Plea, that the defendants revoked and disannulled the bond, and all the powers granted to Strong and Mitchell, the arbitrators. The demurrer is well taken to this plea. It might have been treated as a nullity, had the plaintiff so elected. It is more than probable the objection is stricti juris, and that, had the condition been set out, it would have contained a submission to arbitrators. The defendants, however, have not chosen to crave oyer ; and, consequently, have not laid a foundation for giving effect to their pica.
The second count sets out a bond, with condition, submitting to arbitrators. It recites an award, and avers performance. The third count is on the award, setting out the bond of submission as inducement, and avers non-performance.
The defendants plead, separately, to the second count, a revocation of the bond and all powers granted by the same, before award made : to the third count, a like plea. The plaintiff, after praying that the bonds, in the 2d and 3d counts, be enrolled, and craving oyer of the deed of revo=. cation, demurs, specially, to the 2d and 3d pleas. The. first eáuse of demurrer is not well taken. Notice of the revocation is implied in the feci, that it was revoked, prior to the making the award; for, without notice, the deed, would not have amounted to a revocation. (16 John. 210.)
I shall only notice the 3d, 4th, 5th and 6th causes, tho others being frivolous, and not attempted to be supported* The allegation, that the defendants revoked the bond, is, at most, only surplusage. I consider it as intending no more fhan that the bond was revoked, so far as it delegated powers to the arbitrators. The same objection was taken, in Allen v. Watson, (16 John. 205) and overruled.
The fourth cause rests on the ground, that the revocation is unintelligible, and does not apply to the bond. By trans-. posing the words, “ take notice that,” it will read, “we re-, voke the arbitration bonds executed by us.” A strict literal and grammatical construction would often be absurd, sometimes contradictory, and frequently unjust. A liberal con[343]*343^deration is to be had of the whole instrument, in relation to the subject matter, to discover what was the intention of the parties. In many cases, courts of justice have supplied words, transposed them, or considered them merely as surplusage.
In Griffith v. Goodland, (Sir T. Raymond, 464) the der fendant covenanted with the plaintiff, his executors, &c. that he should have seven parts of all the grains, made in the defendant’s brew-house, for a certain term. The breach assigned was, that the defendant had, with intent to deceive the plaintiff, put divers quantities of hops into the malt, of which the grains were made, by reason whereof they were spoiled. After verdict, there was a motion in arrest of judgment; but judgment was given for the plaintiff, because “ the intention of the parties is to be considered, in all contracts, and it was the intent of the parties here, that the plaintiff should have the grains for the use of his cattle, and they will not eat them when hops are put into them.” The defendant had, literally, performed his contract. He had not covenanted that he would not put hops into the malt. But the Court judged of the intent.
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SAVAGE, Ch. J.
Each count in a de~laration is supposed to contain a distinct cause of action ; and must, therefore., be answered by the defendants, or judgment may be entered thereupon by default. The defendants so consider these counts in their pleas. The first count is simply on a bond for. the payment of money. The plea to that count pre-supposes that it is on a bond of-submission to arbitrators, and sets up a revocation in bar. This, of course, is no answer. If .the bond, described in the first count, be, in fact, the same qs the. one set forth in the, second, and the. defendant had wished to answer it, by this plea, his course was to have craved oyer, and spread the bond, with the condition, upon the record. This would have given application to the defence presented by the plea. As we find it upon the record, it is certainly no answer to the first count. The plaintiff is, therefore, entitled to judgment upon that count; but I think it right that the defendants have leave to amend, on payment of costs.
The first ground of special demurrer to the 2d and 3d pleas, is directly answered by the case of Allen v. Watson, cited in the argument; and the 2d ground is virtually answered by the same Case. The matter excepted to, thirdly, is surplusage, and might be, stricken put, without impairing ,the effect of the plea. The allegation that the defendants-
revoked the bonds, is void, and the revocation, is left to ope-' rate upon the powers of the arbitrator
The 4th cause supposes the instrument of revocation so utterly unintelligible as to fail altogether in the effect ascribed to it by the pleas. I am not satisfied that there is, as contended upon the argument, any reason fpr a greater strictness of interpretation in this case, than in the ordinary one of a contract between the parties. If the latter were left to be governed by the rules of syntax, it would, many times, be [341]*341impossible to arrive at the real intention.
But it is contended, fifthly, that the prayer of the plea should have been only in bar qf the award—not the action, It is true that, by the revocation, the penalty of the bond is forfeited, and an action lies upon it to recover the damages actually sustained. But the pleas answer the action, as one brought upon the bond an¡d award. The plaintiff should have assigned, for breach, the revocation itself) had she intended to avoid these pleas. As she has not done so, but goes for the non-performance of the award, the plea is right. It is a full and perfect answer tq an action resting, as this does, upon the validity of the supposed qwqrd : whereas, had the prayer been simply in bar of the award, it would have been bad, as professing to answer a part of the count only.
To the 6th cause, it was correctly answered, in argument, that nothing appears, shewing the submission to have been made a rule of Court. Had the rule been entered, a revocation, afterwards, would have been a contempt of Court, for which the party would have been punished; but, till made a rule, it is a mere agreement, in its nature revocable.(p)
I am, therefore, of opinion that the defendants are entitled to judgment on the 2d and 3d pleas, with leave to the plaintiff to amend, on the usual terms. -
[342]*342Wood worth, J.
The first count is on a bond for the payment of money. Plea, that the defendants revoked and disannulled the bond, and all the powers granted to Strong and Mitchell, the arbitrators. The demurrer is well taken to this plea. It might have been treated as a nullity, had the plaintiff so elected. It is more than probable the objection is stricti juris, and that, had the condition been set out, it would have contained a submission to arbitrators. The defendants, however, have not chosen to crave oyer ; and, consequently, have not laid a foundation for giving effect to their pica.
The second count sets out a bond, with condition, submitting to arbitrators. It recites an award, and avers performance. The third count is on the award, setting out the bond of submission as inducement, and avers non-performance.
The defendants plead, separately, to the second count, a revocation of the bond and all powers granted by the same, before award made : to the third count, a like plea. The plaintiff, after praying that the bonds, in the 2d and 3d counts, be enrolled, and craving oyer of the deed of revo=. cation, demurs, specially, to the 2d and 3d pleas. The. first eáuse of demurrer is not well taken. Notice of the revocation is implied in the feci, that it was revoked, prior to the making the award; for, without notice, the deed, would not have amounted to a revocation. (16 John. 210.)
I shall only notice the 3d, 4th, 5th and 6th causes, tho others being frivolous, and not attempted to be supported* The allegation, that the defendants revoked the bond, is, at most, only surplusage. I consider it as intending no more fhan that the bond was revoked, so far as it delegated powers to the arbitrators. The same objection was taken, in Allen v. Watson, (16 John. 205) and overruled.
The fourth cause rests on the ground, that the revocation is unintelligible, and does not apply to the bond. By trans-. posing the words, “ take notice that,” it will read, “we re-, voke the arbitration bonds executed by us.” A strict literal and grammatical construction would often be absurd, sometimes contradictory, and frequently unjust. A liberal con[343]*343^deration is to be had of the whole instrument, in relation to the subject matter, to discover what was the intention of the parties. In many cases, courts of justice have supplied words, transposed them, or considered them merely as surplusage.
In Griffith v. Goodland, (Sir T. Raymond, 464) the der fendant covenanted with the plaintiff, his executors, &c. that he should have seven parts of all the grains, made in the defendant’s brew-house, for a certain term. The breach assigned was, that the defendant had, with intent to deceive the plaintiff, put divers quantities of hops into the malt, of which the grains were made, by reason whereof they were spoiled. After verdict, there was a motion in arrest of judgment; but judgment was given for the plaintiff, because “ the intention of the parties is to be considered, in all contracts, and it was the intent of the parties here, that the plaintiff should have the grains for the use of his cattle, and they will not eat them when hops are put into them.” The defendant had, literally, performed his contract. He had not covenanted that he would not put hops into the malt. But the Court judged of the intent. They knew that the grains were intended for the plaintiff’s cattle; and, therefore, concluded that mixing hops with the malt, which prevented the use, was against the spirit of the contract, and, therefore, a breach of the covenant.
The prayer, in the plea, is, “ whether the plaintiff ought to maintain her action thereof,” &c. I perceive no sufficient objection to this prayer ; for, if the plea is good, the defendants are entitled to judgment on these pleadings. It is no •answer to say, the bond still remains in force, on which the plaintiff may assign other breaches, and recover her actual damages: this is admitted. The effect of the judgment for the defendants will be in bar of the award only—the plea implies no more—so that the plaintiff may, notwithstanding, proceed to recover her actual damages.
As to the sixth cause, there seems to be a mistake, in point of fact. By the submission, “ the award may, by either party, be made a rule of the Supreme Court.” This was prospective, merely. It does not appear that any rule [344]*344has ever been entered; It was competent for the defendants revo¡ce) aj. any time previous to the entry of the rule and. making the award. In Milne & others v. Gratrix, (7 East, 608) Cord Ellenborough observes, “ there is nothing in the statute to render a submission irrevocable, while it continues executory. The statute says, * It shall and may be lawful, for parties to agree that thfeir submission shall be made a rule of Court, which agreement, (that is, so long as it exists as an agreement, tmrescihded) shall or may be entered of record.’ After it is made a rulé of Court, the party cannot, indeed, rescind it, without incurring a breach of that rulé; but, till then, it has its binding force as an Agreement only, to submit to the award of the arbitrator, whose authority is, in its nature, revocable, and, for the breach of which agreement, the party has a remedy of another sort-Then, if, before any award made, one of the patties have revoked the authority of the arbitrators, they cannot make ány award to bind him.”
My conclusion is, that the plaintiff is entitled to judgment, on the demurrer to the first plea, and the defendants fix-judgment on the special demurrers.
Sutherland, J. concurred.
Judgment accordingly.-
2 Bl. Com. 379.