Marshall v. Reed

48 N.H. 36

Opinion

Nesmith, J.

This was debt founded upon a written and sealed instrument, which is specially declared on by plaintiff. The main or leading object of the contract was doubtless to procure the final adjustment or establishment of a disputed line between the adjoining lands of the respective parties, through the aid and intervention of an arbitrator agreed upon by them. It appears that said parties mutually covenanted and agreed to consent to, and abide by, such line as the arbitrator, aided by such competent engineer as he might select, should ultimately, upon a full examination, find as the true dividing line between their lands which was then in dispute. Also, that, in consideration that the plaintiff should pay the expense of running said line, the parties further mutually agreed, the one with the other, to forfeit and pay the sum of fifty dollars in case of a default in the performance of the covenants and agreements of the indenture, to be paid to the party complying with and performing her covenants contained in said instrument as aforesaid. An award in the premises is duly found by the arbitrator with the aid of his engineer. The plaintiff, on her part, alleges a compliance with said award, and a full performance of all the covenants binding upon her.

The plaintiff further alleges that ever since the 20th day of April, 1866, being the day when said award was made and published to the parties, the said defendant has refused to consent to and abide by said line as found and established by said Spalding and his engineer, Otter-son, and still refuses, whereby an action has accrued to plaintiff to demand and recover of the defendant the sum of fifty dollars. It will be seen that the breach assigned by plaintiff is in very indefinite and general terms. No'specific act of the defendant is set forth, as having been done by her in violation of the line awarded by the arbitrator, nor do we ever find any distinct declaration of the defendant, anywhere made, tending to show her refusal to abide by the line as found and established in the case. No positive averment is made by plaintiff indicating any particular wrong committed by the defendant. Everything of this kind is left open to inference or conjecture. The question arises, then, whether the intent and meaning of the parties to this contract may not be limited and measured by the construction of similar language, as used and found in common arbitration bonds.

In Shaw v. Hatch, 6 N. H. 162, it was settled that the stipulation in the condition of an arbitration bond, that the parties shall abide by and perform the award of the arbitrators, means only that they shall ctioaiu the award of the arbitrators without revoking the submission, and not that they shall acquiesce in the award when made. Chief Justice Richardson remarks in that case, that the agreement to abide by and perform the award, means simply to await the award, without revoking the submission, and never can be construed to mean that the defendant should not be at liberty to dispute the validity of any award when made. He quotes the case, Marsh v. Bulteel, 5 Barn. & Ald. 507, where C. J. Abbott says, "that the defendant by countermanding the authority of the arbitrators had broken the covenant to abide by the award.”

The cases Quimby v. Melvin, 35 N. H. 198, and Sleeper v. Pickering, 17 N. H. 461, do not settle the precise point here at issue, but tend to illustrate the doctrine, that the language employed in arbitration bonds, "to abide by the award,” is to prevent the revocation or breaking up of the contract of the submission, rather than to apply to the actual finding of the arbitrators. The latter case shows, also, that liquidated damages may be recovered, where there is a wrongful attempt to revoke the submission. In Blaisdell v. Blaisdell, 14 N. H. 78, which was an action of debt on an arbitration bond, containing a penalty, it was settled that the plaintiff is not entitled to recover the penalty, but only so much as is due in equity and good conscience. In the case before us, it appears to us that the proper meaning of the words as used by the parties in their indenture, viz., "to consent to and abide by such a line as the arbitrator should establish for them,” is the same in legal effect as if the language of the parties had been "to abide by, and perform the award of the arbitrator.” The obligation implied from the use of either form of expression would be the same; as the intent of the parties, if fulfilled, would be in either case to find the true dividing line between their adjacent lands, arid have it settled permanently. As a consequence arising out of the aforesaid positions, we do not find, under the demurrer of the defendant, that the breach of the contract of the parties is legally set forth, and therefore this action in its present form cannot be maintained. We do not find the penalty to be designed by the .parties for the purpose as claimed by plaintiff. The award made in the premises, though not made here the subject of our special examination, will, of course, stand as conclusive upon the parties until impeached for good cause. Under the frequent decisions in this State, it is competent for the parties who have a dispute about the true dividing line of their lands, to settle the same by and through the award of a surveyor or other arbitrators, and their award will nob be disturbed without the consent of both parties, and except for good cause shown. Orr v. Hadley, 36 N. H. 575, and cases cited.