Robbins v. . Killebrew

95 N.C. 19

• Court: Supreme Court of North Carolina
• Decided: October 5, 1886
• Status: Published

Opinion

Ashe, J.

(after stating the facts). The only exceptions taken by the plaintiff to the award of the arbitrators are: First, that they award that the defendants are entitled to a sale of the property described in the pleadings, and secondly, that they are entitled to judgment against Robbins and Sharpe in the sum of $3,000, to be discharged upon the payment of any sum remaining due after the application of the amount raised by the sale.. He contends that the arbitrators transcended in this respect, the power given to them by the order of reference.

The order of reference in this case, docs not state, in so many words, that the award of the arbitrators shall bearw/eof Court, but it does state that judgment shall be entered upon the award, which necessarily makes it a rule of Court. Lusk v. Clayton, 70 N. C., 184.

As by the contract the defendants were to retain the title to-the property until the price was paid, the object and effect of that stipulation, was to give the defendant a security for his debt, and was in the nature of a mortgage on the property to secure the payment of the price, and without express authority for such a course, the defendant was entitled, ex aequo et bono, to have a judgment for the sale of the property. It is well settled, that arbitrators are not bound to decide a case “according to law,” being a law unto themselves, but may decide according to their notions of justice, and without giving any reason. Leach v. Harris, 69 N. C., 52. They are a law unto themselves. Jones v. Frazier, 1 Hawks, 379.

The policy of the law is in favor of settlements by arbitrators, and their awards should be sustained whenever it can be done consistently with the rules of law. If no reservation is made in the agreement of submission, the parties are presumed to agree that every consideration of law and fact which can affect the final and ultimate decision of the cause, is included in'the authority of the arbitrators, and is matter proper for their determination. They are not bound to decide upon mere dry principles of law, but may decide upon principles of equity and good conscience, and may make their award ex cequo et bono. 2 Story Eq. Jur., §1454; Johnson v. Nobor, 38 Me., 487. We are of opinion, considering the broad terms of the order of re-commitment, that the arbitrators in this particular have not transcended their authority.

The second matter excepted to, was evidently embraced within the order of reference. In the first report, only the amount of the indebtedness of the plaintiff to the defendant had been awarded by the arbitrators, and when the defendants moved for judgment on the claim and delivery bond, for the amount of the debt found to be due, and for foreclosure by a sale, the plaintiff objected, on the ground it would transcend the award of the arbitrators. Therefore, with the consent of the attorneys on both sides, the matter was resubmitted to the arbitrators, to find all other issues of law and fact involved in the case.

The recommitment of the case to the arbitrators would therefore, under the circumstances, to say nothing of the scope and meaning of the order itself, seem especially intended to embrace the question of foreclosure by sale. But if that were not so, the language of the second order is broad enough to cover it.

All issues of law and fact involved in the case are submitted. The defendant having pleaded a counter-claim, the question whether the defendant should have judgment on the bond of the plaintiff, was entirely a question of law involved in the case. The fact that the counter-claim of claim and delivery was imperfectly pleaded, can make no difference in this case, for no objection was made to its form, by demurrer or otherwise, and in such case, it is too late after a reference to object to the matter of form. Greensboro v. Scott, 84 N. C., 184. And although the judgment in such a case, should strictly be in the alternative, it may be by consent of parties to the judgment, a judgment for a sum certain without the alternative judgment for the return of the property. Council v. Averett, 90 N. C., 168. But when the question is submitted to arbitration, it gives a discretion to the arbitrators which is equivalent to consent. And such a judgment is binding on the surety, and a summary judgment may be entered against him. Council v. Averett, supra.

Our conclusion is, there is no error, and the judgment of the Superior Court is therefore affirmed.

No error. Affirmed.