M'Cullough v. Myers's Ex'rs

3 Ky. 197

• Court: Court of Appeals of Kentucky
• Decided: April 11, 1808
• Status: Published

Opinion

Edwards, Ch. J.

delivered the opinion of the court; After a statement of the case, he proceeded: It seems to this court that the award set forth is null and void, because not sealed, as expressly required by the submission, and because it leaves the matter wholly uncertain; undetermined, and open for future controversy. These oiijections, not to mention others of minor importance; could only have been surmounted by the express agreement of the parties, subsequently made; and looking to the award as the basis of anew contract; or at least; by an express promise, on the part of McCullough, to perform the award,- after he had notice thereof, amounting to a waiver of the objections thereto. Such a case (although' attempted) is not satisfactorily made out by ihe evidence.

The decree, therefore, of the circuit court; bottomed on the said award, is erroneous ; arid is hereby reversed and set aside. This renders it unnecessary for this court to examine the principles upon which their former opinion was founded ,- but without affirming or disaf-firming them, the said former opinion and decree of this court, herein made and entered, is set aside;

And because it appeareth from the bill, answer and exhibits, that the complainants in the circuit court, have matters of equity, independent of the award; upon which tlie said court have not adjudicated, and which are proper to be farther inquired into:

This cause is therefore remanded to the said circuit court, with directions to set aside the verdict of the jury, and for new proceedings to be had in the cause ; disregarding the said award, as though the same had never been made.