Sutton v. Tyrrell

10 Vt. 91

• Court: Supreme Court of Vermont
• Decided: January 15, 1838
• Status: Published

Opinion

The opinion of the court was delivered by

Collamer, J.

The first question is, did the entry and continuance of the action, in the County Court, amount to a revocation of this submission? Revocations are express, or in fact; or implied, or in law. In relation to the first, they are made by the party, and are to be in the same form or manner in which the submission is made. If the submission be by deed, then the revocation must'be under seal; if by writing, then so must be the revocation ; and if, simply, by parol, then it may be so revoked. Implied revocations, or revocations in law, arise from the legal effect and necessary consequence of some intervening event, either providential or caused by the party, necessarily putting an end to the business. The death of the party, or umpire; the marriage of a party feme sole, the lunacy of a party, or the utter destruction or final end of the subject matter, are of this description. The entry and' continuance of the action was, obviJ ously, not an express revocation, nor was it such an act as put an end to the subject matter of the submission, nor did it jirevent the arbitration from proceeding with-effect. It occasioned the defendant no cost, ana, indeed, it was no more than an ordinary act of caution, to keep the action in existence, should the opposite party revoke or decline to attends This, then, was not a revocation in law.

The submission does indeed provide, that all pending suits shall be discontinued; but it provides no time when this shall be done ; much less does it make the performance of tlris a condition precedent. Most clearly, either party might recover on this submission, without averring or proving a discontinuance of his actions.

It' is ñext insisted that the notice given by the defendant’s attorney was a revocation. But, ás^already remarked, even If he had the power of revocation, it was not legally exercised, for it must have been in writing. The submission was in force, until finally revoked in writing, and therefore the plaintiffs were entitled to recover. The amount they were entitled to recover was the damages and cost they suffered, and this was entirely a point to be settled by the jury. There was, therefore, no error in the Court in informing the jury they might allow for expenses of counsel, at that meeting of the arbitrators.

Judgment affirmed.