Lee v. Onstott

1 Ark. 206

Opinion

Dickinson, Judge,

delivered the opinion of the court:

This suit was commenced before a Justice of the Peace, by the intestate, against Cocke and Lee, on an account founded upon an award. Judgment was rendered against them, from which they appealed to the Circuit Court of Pulaski county. After the appeal, Collins died, and the suit was revived in the name of Onstott, his administrator, a new trial had, and judgment rendered against the defendants, and Elias Rector as their security in appeal. After judgment in the Circuit Court, Cocks died; and this cause is now brought up by Lee and Rector as his security. Various causes for reversal are assigned, but the principal and main question is, whether the award is final and conclusive, and determines all matters submitted. The award itself, upon which this action was brought, and which forms a part of the record, states that* whereas, there are several accounts depending, and divers controversies having arisen between Doctors Cocke and Lea, of the one part, and Pratt Collins of the other part, who were lately associated as joint partners, in keeping and furnishing a livery stable in the town of Little Rock; that, for putting an end to the said differences, they, Doctors Cocke and Lee and Pratt Collins, by their certain agreement in writing, bearing date the 22d day of November, 1832, each was reciprocally bound to the other in honor, to stand to, abide and perform and keep the award and final determination of them, the said Field and Padgett, or of an umpire, in case of their disagreement; and thereupon the said Field and Badgett farther sta(;a that, having taken upon themselves the burthen of an award, and having fully examined and duly considered the proof and allegations of both parties, award “that the books and .accounts relating to the said livery stable snail be given up to Pratt Cellini, who shall proceed without delay, to collect the same; that out of the collections aforesaid ho shall first pay all claims against ¡he said firm, for attendance and necessaries furnished for the use of the stable, and deduct his own claims for advances made for the úse of the stable, over and above his proportion; and, also, deduct any private claims he may have against Cocke and Lee” The said Collins was, also, to make out an account of all'moneys collected by him, and all payments made, to be supported by affidavit made, and submitted to the said arbitrators for their approval, alteration, or rejection. They, also, award that Cocks and Lee shall pay Mr. Stephenson for a saddle taken by them from the stable, and which Stephenson had left there for sale; and they farther awarded and ordered, that so soon as the collections aforesaid should bs completed, and the accounts settled and approved by them, Cocks and ¿se and Pratt Collins should execute eacii to the other, general releases, sufficient in law, for releasing by each to the other of them, of all actions, suits, &c. concerning the premises aforesaid.

The agreement of submission, which was offered and received in evidence, and which forms a part of the record, purports to be executed by Cocke and Lee, of the one part, under their joint seal, and Pratt Collins of the other, also under bis seal, but dated the 2oth day of November, 1832, and states “that, on the 9th day of March preceding,the parties made and signed an agreement to keep a livery stable in partnership, on the tcrai3 set forth in the agreement; that the partnership was dissolved, but that they could not effect á settlement between themselves; that to accomplish this object, and avoid all difficulties, they agreed to submit for arbitration, and award, all matters of controversy between them, to the final hearing and decision of Messrs. Field and Badgett, with liberty to call in witnesses; that they, the arbitrators,should take possession of ail books, relating to the business of the stable, of the said Cocke and Lee and Pratt Collins, on account of the stable; that they should ascertain, as well as they could from the parties,or otherwise, what was due from the stable to individ ; uals on acount of the concern; that the arbitrators were to make a full and final settlement. And they further authorize the arbitrators to sit when and where they thought proper; and directed that all private accounts, between them, should be taken into the enstimate, and settled.”

The object in submitting matters of controversy to arbitratiors, is for the purpose of obtaining a final and speedy determination of the dispute, with loss delay and expevrse, than by having recourse to the ordinary tribunals of the country. Is this award final? In the submission upon which the arbitrators acted the parties were to stand to, abide and perform and keep the final determination of the arbitrators, and the submission here set forth is, that “ to obviate all difficulty and effect a settlement between themselves, they agree to submit for arbitration and award all matters in controversy between them, to final hearing and decision.” The award states that, after having fully examined, and duly considered the proof and the allegations of the parties, the books and accounts should be delivered to Gollins, and that he should collect the moneys due, and pay all claims on account of the stable, and after deducting payments due him therefor, and by Cocke and Lee, make an account of all'moneys collected, and all payments made. lias he done so? It is true, that on the 3d of April, 1833, he presented an account of moneys received, and struck a balance, and made affidavit that the account was just and true; hut it does not appear, nor does he state, that it is an account of all moneys collected, or that he iias paid ail She claims due, as by the award he was bound to do, And though the account was on the 15th of April following, approved by the arbitrators; yet it does not appear from the record, that they have ever proceeded to make a final adjustment of the matters in controversy between the parties. As the intention of parties in submitting their disputes, is to have something ascertained which was uncertain before, it is a general rule, that the award ought to be so plainly expressed, that there may be no uncertainty in what manner and when the parties arc to put it in execution, but that they may certainly know what it is they are ordered to do. It is to no purpose, says the civil law, that the arbitrator should pronounce an uncertain award, and the English law has, in this respect, adopted the same language. Therefore, an award that one of the parties shall pay the other for certain task work and day’s work, without mentioning the sum, is void. And again: the plaintiff and defendant having certain disputes concerning a piece of land, submitted them to arbitration. The arbitrators awarded, amongst other things, that ^le defendant should enter into a bond to the plaintiff, that the plaintiff and his wife should enjoy the land. This was held to be void, because the arbitrators had fixed no certain sum for the penalty of the bond, and there were no means by which the same could be ascertained; for it was held that they did not resemble the case of a covenant by the party himself, to enter into a bond for the enjoyment of land, in which, if no sum be expressed in the covenant, it is implied that the penalty shall be equal to the amount of the lands. See Kyd on Awards, 208, 194, 5th ch. 71; 2 Saunders, 292. The authorities are numerous and conclusive, that the award shall be in accordance with the submission, and shall be final and conclusive. This award is not final and conclusive; and the date of the submission set forth in the award, as the one from which they derived their authority to act, is different in date from the one set forth as part of the record in this case. As to the other objection, that the submission is under but one seal, being the joint seal of Cocks and Lee, the general doctrine is well settled, that one partner cannot bind another by deed, even in commercial dealings; and the reason of the rale is obvious and salutary. Sealing and delivery are indispensable requisites to the validity of a deed; and these requisites must be complied with by both, or by some one expressly authorized by the party, who does not sign, seal, and deliver. And if this was not the case, as the want of consideration under seal, cannot be inquired into, it would enable a party to give a favorite creditor a lien upon the estate of the other partner, to the great injury of the firm. This principle has been ruled in the case of Harriss vs. Jackson and Thompson vs. Fearn, 7 Term Rep. 207 and 10th East, 418; but it docs not apply where one partner, by the authority of his copartner, and in his presence, executes a deed for both of them, under but one seal; for the fact of his presence, at the time of his signing, and the circumstance of treating the deed as his own, raises the inference of a construction and legal delivery against both, and under any circumstances would be valid against him who executed; for he cannot avail himself of its noarexecution. A bond executed by one partner to bind his copartner to comply with an award, will be binding on such copartner, if the award should be accepted or ratified by him.

Whether the testimony before the Circuit Court was sufficient to hind both Cocke and Lee, it is unnecessary for us to determine; but that the award is uncertain, and not final or conclusive, as between the parties, we have no doubt. We are, therefore, of the opinion that the court below erred in permitting the award to be read in evidence to the jury; and consequently the judgment must be reversed with costs, and this case remanded to the Circuit Court of Pulaski, for fur- ,. , , . , . . ’ Sner proceedings to be had ttierem, not inconsistent with-this opinion.