George v. Farr

46 N.H. 171

Opinion

Nesmith, J.

This was debt on bond. The first plea is, that there was no award made by the referees named in the condition of said bond. This plea appears to be sustained by the production of the award itself, which is signed by W. S. Crouch, and also by White and Baker, the said Crouch not being one of the referees originally agreed to before the execution of the bond in suit. The evidence is, therefore, that the award produced is not in pursuance with the submission of the parties, as contained in the original bond, and for this reason is not binding.

But the case finds that the parties afterwards, on the day of, the date of the bond, under a written submission, authorized said Baker and White, the referees before named, in case they could not agree, to select a third man to sit with them on said case, the report of whom being made and returned to said parties, at the time of said reference, shall be final. Said reference to be on the 30th day of December, A. D. 1862.

It is held that a parol agreement so- substituted may be sufficient whereon to found an action of assumpsit, but cannot be the foundation of an action on the bond whereby the parties bound themselves to perform a different contract. Heard v. Wadham, 1 East. Rep. 630; Littler v. Holland, 3 Term Rep. 589; Cook v. Jennings, 7 Term Rep. 381.

In this State, it has been decided, that, where a submission is made by deed, the time for making the award can be extended only by deed, and the profert of the latter must be made in pleading. Brown v. Copp, 5 N. H. 223.

Aá the award in the case does not pursue the submission in the bond, the plaintiff cannot recover.

Judgment for defendant unless the plaintiff shall elect

A tried by jury.