59 Mass. 129 - Leavitt v. Comer — 59 Mass. 129

Thomas H. Leavitt vs. George N. Comer. If two partners, upon a dissolution, submit to arbitration all matters in controversy between them, as well individual as partnership, and the arbitrators award concerning the latter only, it cannot be objected to the award, that they have not passed upon all the matters embraced in the submission, unless it also appear, that there were, in fact, individual demands in controversy between the parties. Under a submission of all matters in controversy, arising out of a copartnership and the dissolution thereof, it is not beyond the authority of the arbitrators to award, that one of the parties shall give up to the other certain promissory notes signed oy the latter. If one of two arbitrators sign their award, under a mistake as to the allowance of a credit to one of the parties, which is in fact omitted, this is no sufficient ground for invalidating the award. This was an action of covenant, to recover aamages for the non-performance of an award, tried before Bigelow, J., in the court of common pleas. On the 3d of May, 1847, the parties signed and sealed an indenture of two parts, by which they agreed to a submission of certain matters between them to the award of arbitrators, in substance, as follows: — The submission first recites, that the defendant had determined to dissolve the copartnership existing between him and the plaintiff as bookkeepers and accountants and had proposed to the plaintiff, to leave all questions arising from such dissolution, and the rights and claims of each partner upon the other, and all matters and affairs growing out of the co-partnership, to the arbitration of two disinterested persons, who should hear the parties touching all matters of difference between them, and their respective claims upon each other, to which proposition the plaintiff had consented. The parties then agree to submit to the decision of the two persons, whose names should be indorsed on the back of the instrument, one of whom was chosen by each of them, respectively, all matters and questions relating to the partnership,— the dissolution thereof,— the transactions growing out of the same, — and all their respective claims and demands against each other, from whatever cause arising. The arbitrators awarded, that the defendant should give up to the plaintiff two notes (particularly described) which he held against the plaintiff, for the sum of $375, each ; that the defendant should assume all the liabilities of the firm, of every kind and nature, including all the expenses connected with the dissolution thereof, and of the reference; that the defendant should execute to the plaintiff a satisfactory bond to hold the plaintiff harmless from all such claims, liabilities, and expenses ; that the defendant should pay in cash to the plaintiff, the sum of six hundred dollars; that the defendant should have all the personal property and ■ books of debt due to the firm; and that the plaintiff should make and deliver to the defendant a transfer of all his interest in the same. The defendant objected to the award : — 1st, That the arbitrators had not passed upon all matters submitted to them; inasmuch as the submission embraced all personal liabilities, as well as those of a copartnership nature, and all claims for damages as well as claims on account; whereas the award only set forth, that the arbitrators had passed upon the co-partnership matters and the dissolution, and was silent as to all the other matters submitted. 2d, That the arbitrators, in awarding that the defendant should give up the two notes mentioned in the award, had exceeded their authority ; inas-' much as it did not appear by the award, that the notes were in any manner connected with the partnership or business transactions, upon which the arbitrators reported that they nod passed; and in order to give arbitrators the p iwer to inquire into the ownership or disposal of chattels, it must be expressed in the articles of submission. These objections were overruled by the presiding judge. The defendant then called one of the arbitrators as a witness, and offered to prove by him, that, although the award produced was signed by him, it was not in fact his award; because, upon the hearing, it was admitted by the parties, that forty-nine pupils had paid in advance to be instructed by them in the branches which they taught; that it would be worth ten dollars each to complete the instruction of these pupils; and that the party who should assume the liabilities of the firm should be credited with incurring an expense to that amount. The witness would also testify, that after hearing the parties, the arbitrators agreed upon and fixed the sum of six hundred dollars to be awarded in favor of the plaintiff-, that, in comparing the accounts and in fixing upon the amount due, they did not take into account the expense of completing the instruction of the forty-nine pupils, but entirely overlooked the same, thus making a difference against the defendant of four hundred and ninety dollars; and that the witness did not discover the mistake or omission, until after the arbitrators had made and published their award. The presiding judge ruled, upon this offer of evidence, that the defendant under his specification, that the award was made by mistake and misunderstanding, as to the matters submitted, by or on the part of one of the arbitrators, could not show that both the arbitrators overlooked or omitted to credit the defendant with the amount agreed to be credited for instruction ; and that if but one of the arbitrators was mistaken or omitted to make such allowance, the evidence was inadmissible, because the mistake, if proved, would not be sufficient ground for invalidating the award. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. S C. Maine, for the defendant, W. SoMer, for the plaintiff. — Dewey, J. (majority) Dewey, J. The defendant insists that this action cannot be maintained ; 1st, Because the award does not embrace all the matters submitted. The more precise objection taken is this, that the submission embraced not only the partnership dealings of the parties, but also all their private dealings, while the award only relates to their copartnership concerns. Upon the face of the submission, it is not entirely certain that the parties originally intended to submit any demands, other than those in some way connected with their copartnership. The recital of the matters inducing the submission, which precedes the enumeratiori of matters submitted, would authorize the inference, that it was with reference solely to partnership concerns. The subsequent part of the submission is broad enough undoubtedly to authorize the construction, that it embraces all demands between the parties, and that had there existed other demands between them, that were subjects of dispute, the arbitrators might have taken sucfi demands into consideration, and awarded concerning them. But, in our opinion, if it is so, it furnishes no objection to this award, unless it also appears that there were in fact such private demands, the subject of controversy. Karthaus v. Ferrer, 1 Pet. 222, 227. The case of Houston v. Pollard, 9 Met. 164, cited by the counsel for the defendant, differs materially from the present case, and only holds that where it appears on the face of the submission, that various distinct matters in controversy are the subjects of the submission, and the particular subjects are recited, each of those subjects must be passed upon by the arbitrators, and noticed in their award, or the award will not be valid. 2, It is said that there was no authority given to the arbitrators under the submission, to make an award directing the delivery over to the other party of certain notes of hand. But, we think otherwise, and that such award was well authorized by the nature of the submission and the subject-matter submitted. Kyd on Awards, 114. 3.. The defendant offered to prove by the testimony of one of the arbitrators certain facts tending to show, that although the award was signed by him, yet in fact it was not his award, as he intended to have made the same, and that in making their computations, the arbitrators overlooked. certain items, and made certain omissions, which materially affected the result. Upon this point, we think, the ruling of the court of common pleas was correct, and that the proposed evidence was inadmissible. It is wholly so upon principle, and authority. Withington v. Warren, 10 Met. 431; Boston Water Power Co. v. Gray, 6 Met. 131; Phillips v. Evans, 12 M. & W. 309. Exception overruled