Matthews v. Matthews

16 F. Cas. 1120, 2 Curt. 105

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1854
• Status: Published

Opinion

CURTIS, Circuit Justice.

This is an action of debt upon awards, set out in four counts in the declaration. Among other pleas the defendant has pleaded, secondly, as follows: (Here the second plea, as set out above, was read.) There are four counts in this declaration purporting to be for four distinct causes of action, and this plea is pleaded to all. It begins in bar of the action. Yet its subject-matter can answer only one count. It avers that “the instrument re-fen-ed to by the plaintiff, and set forth in his writ, as an award between these parties, and alleged to have been made and published on the thirtieth day of September last, was not made,” &c. There are three such instruments declared on. The plea, if good, can answer but one of them, and there is no means of knowing which one it is intended to answer. For both these reasons the plea is bad. First, because it is pleaded to the whole declaration, when it contains an answer to only one count; second, because it is impossible to decide which of these counts it was intended to answer. This is not the only defect in the plea. As already, stated, there are four counts in the declaration. In' three of them, an award founded on an instrument of submission is declared on. In the other count, no instrument of- submission is referred to. The plea relies on a revocation of an instrument of submission as a bar to the action. Manifestly it cannot bar the count in which no such instrument is mentioned, and which is in no way dependent on it, and as the plea is to all the counts, and fails to answer one of them, it is bad on demurrer. The sixth plea is as follows: (Here the sixth plea, as set out above, was read.) This plea denies what the plaintiff would be obliged to prove under the general issue, and consequently is bad for that cause, which has been specially assigned in the demurrer taken to it 3 Barb. 56; Wats. Arb. 208.

Without malting any serious effort to support these pleas, the defendant insists that it will appear that the declaration is also bad. It was objected to the first count, that though it shows a special agreement in the submission to perform the orders and awards of the referees as the same should from time to time be made known to the parties, it is not averred that notice was given to the defendant of the award therein declared on. Ordinarily, notice by the plaintiff to the defendant, of an award, is not necessary to be averred or proved, because the first lies as much in the knowledge of the defendant as of the plaintiff. 2 Saund. 62, note 4; Child v. Horden, 2 Bulst. 144. But where, as in this case, it is specially provided that notice of the award shall be given to the parties, it is no award, until such notice is given. Id. It should appear in this count, by some sufficient averment, that notice was given to the defendant, of the award declared on. The court avers that the award was duly made and published. The word “duly,” would not, of itself, be sufficient to supply the want of a substantive allegation of a fact, necessary to the validity of the award. Everard v. Paterson, 2 Marsh. 308, 6 Taunt. 645. But “duly published,” is an averment that the kind of publication required by the submission was made. For publication is made by notice from the arbitrator to the parties that his award is in readiness and can be known to them if they choose to know it; this amounts to notice and publication of the award, and such a publication satisfies a requirement in a submission, that notice of the award shall be given to the parties. MacArthur v. Campbell, 5 Barn. & Adol. 518; Musselbrook v. Dunkin, 9 Bing. 605. This objection to the first count is, therefore, not sustained.

It is further objected to the first and fourth counts, that the action of debt will not lie for two sums distinctly awarded, the one for damages and the other for costs. This is not tenable. Every action of debt on a judgment is open to the same objection, for judgments are for one sum assessed as damages, or awarded as the debt, and another for costs. There is a technical defect in these counts in the declaration, that they do not add the two amounts together, and go for the sum of both as a sum single; but I do not consider this to be bad on general demurrer. It is also urged that these counts show that the award was of a sum of money “among other things.” But it does not appear that any of these “other things” were awarded to the plaintiff, and so it is not a valid objection to an action of debt. The objections which have been made to the first and fourth counts are not sustained.

The second count alleges an award, that upon the payment by the defendant to the plaintiff, of a sum of money and the delivery of a release, the plaintiff was to deliver a release to the defendant; and without an averment that the plaintiff was ready or willing, or .offered to deliver his release, it goes for the recovery of the money. I am of opinion that a readiness by the plaintiff to release and notice to the defendant of such a readiness, were necessary to be averred. Taking the statements in the declaration to be true, the acts of .the parties were to be concurrent, and an action cannot be sustained by either without averring and proving a readiness on his part to perform and notice thereof, or something sufficient to dispense therewith. 1 Chit. Pl. 359. For this cause, I hold the second count bad in substance.

Whether an aetion of debt will lie for a sum of money, where that, together with a release, was awarded, I do not determine. See 1 Saund. 201a, note 1; Cro. Car. 137; 12 Mod. 84. The second count having been held bad for another cause, and that count alone showing an award of releases, it is not necessary to decide that question. •

I consider the third count good. It is very general, but I believe it contains all that is necessary. It shows certain differences existing between the parties, a submission of them to referees named, and an award upon those differences, of a sum of money to the plaintiff, pursuant to the submission. This may be a good title; and as it is confessed by the. demurrer, it is sufficient.

Having thus held all the counts, except the second, good, it remains to consider the eleventh plea, and the replications thereto. Questions of great nicety have been argued upon the demurrer taken to the replications of this eleventh plea. But as the first of these replications which are demurred to, goes to support the second count only, and as that has already been held to be bad, and as I consider the plea to which this other replication is made, as also bad, I shall not express an opinion thereon. It was suggested at the bar, that a decision of these questions might have an important bearing upon questions, which are expected to arise on the trial of the issues of fact But it cannot be now known that those questions will be presented then, precisely as they are now, upon these pleadings. . Their aspect may be more or less varied when they shall arise out of the evidence, and I do not think a decision of theni can be anticipated, without some risk of injustice. It is far safer to decide them, when all the facts on which they depend shall be before the court, rather than to attempt to do so now, upon certain abstract averments in the pleadings. The eleventh plea is bad for the same cause as the second plea. It shows, in bar of the whole action, a revocation of one submission only. Four submissions are shown by the declaration. The result is that the second count, and the second, sixth, and eleventh pleas are bad. The other counts are good.