¶1*188The opinion of the court was delivered by
¶2The primary object of this bill is to reforman award of arbitrators, and make it different from wh'at it is upon its. face, or entirely to set it aside, and grant relief according to what is claimed to be the inherent equities of the parties.
¶3We have no occasion to pass upon the question, whether a court of equity has power to correct a mistake in law, unaccompanied with other grounds of relief, and, if so, whether the principle should be extended to awards of arbitrators. The evidence, in this case, to show any mistake in drawing up the award, in regard to its legal effect, is unsatisfactory. To authorize a court of equity to reform a written instrument upon the ground of mistake, the evidence showing the mistake must be strong and of a conclusive character; and it has sometimes been said, it must be irrefragable. But, in° the present case, it seems, that, by the original agreement of the parties, Preston was to give $362.50, (the sum awarded) and risk the title; and we do not learn that there was any controversy before the arbitrators about the title, or. the price to be paid for it. The effect, as given to the award at law, carried out the original agreement of the parties. See 11 Vt. 47.
¶4Very little can be made out of the testimony of Jones, going to to show a mistake; and though the testimony of the other arbitrator is a little more to the point, yet it stands opposed to the original agreement of the parties, and opposed to the award itself; and the defendant, according to his belief, denies in his answer that there was any mistake as to the legal effect o.f the award. The parties must, then, at all events'in this case, stand upon the award, as made and published ; — and if.there had been nothing farther in the case, the bill should be dismissed with costs.
¶5But it seems, that, after Whitcomb had recovered a judgment against Preston for the sum awarded to be paid him for the land, less the value.of the hay, which he had before received, he sold and deeded the land to another person. -The defendant, then, has received, pay for the land, which in equity would belong to the plaintiff, upon his payment of the purchase money. The judgment, which is sought to be enjoined, it is clear, was given for the sum awarded for the land, and the interest, after deducting the hay; *189See Whitcomb v. Preston, 13 Vt. 53. The defendant should not be permitted to retain the avails of the land, and still collect his judgment.
¶6It is now said by the defendant’s counsel that the rule of damages at law was wrong, and that he was only entitled, in effect, to nominal damages. So far as it respects this case, it is a matter of little account, as it seems to me, whether the rule of damages adopted by the court was strictly correct, or not. The plaintiff, in that suit, elected to "take his damages, in point of fact, for the sum awarded by the arbitrators, and if this was wrong, it furnishes no good reason why he should retain the benefit of this judgment, and still hold the avails of the land besides. But we think the rule adopted was the correct one. The plaintiff in that case had, in legal effect, performed the award on his part, by his having executed and tendered to the defendant such a deed as the award required, accompanied, also, with a tender of the possession. The result is, that the decree of the chancellor must be affirmed with additional costs.
¶7The present defendant’s costs in the suit upon the award were rightly deducted by the decree of the chancellor from the orator’s costs in this suit. That judgment was rightfully recovered, both the damages and- costs; and no reason has since intervened why the -costs should not be paid. The cause is rejmitted to the chancellor accordingly, with instruction that he modify the decree only as to the time when the money decreed to be paid to the orator shall ha payable.