59 Mass. 450 - French v. Richardson — 59 Mass. 450

John French & wife vs. Thomas Richardson. ú. F. and M. F. his wife having entered into a submission to arbitration with T R. of “all demands between said parties, or all demands which either of them has against the other; ” and the arbitrator having awarded, “ that T. R. did not owe J. and M. F., or either of them,” “ upon any demands, which they or either of them had against him; ” it was held, that the award sufficiently followed the sub mission. Where one of the parties to a submission to arbitration had given the other a writing, acknowledging that he held in trust for him a specified sum, which was then invested in real estate, and which he promised “ to make over ” to such other party, subject to a deduction of all payments which he might make on account thereof; and this writing was presented to the arbitrator as a claim under the submission, after the trustee had paid or become liable to pay more than the sum specified on account of such obligation; it was held, that the claim, thus presented, did not involve a submission to the arbitrator of the title to real estate. If an award is recommitted generally, the authority of the arbitrator is not restricted, by such recommitment, within any narrower limits than are prescribed by the original submission. Where an award was recommitted generally, and the arbitrator, understanding from the counsel of the respective parties, that the object of the recommitment was to ascertain the exact claims made by one of the parties, for that purpose, annexed to his award the original papers, constituting the evidence of the only claims which were made and insisted on by the plaintiffs’ counsel, in his closing argument, and also stated the grounds upon which he had made the award; it was held, that the arbitrator had not thereby exceeded his authority. The parties in this case having entered into a submission to arbitration, before a justice of the peace, in the form prescribed by the Rev. Sts. c. 114, of “ all demands between said parties, or all demands which either of them has against the other,” the arbitrator made and returned his award thereon into the court of common pleas for this county, at the April term thereof, 1848, as follows: “ That the said Thomas Richardson is not indebted and does not owe the said John and Mary French, or either of them, any thing or sum of money, upon any demands which they or either of them have against him said Richardson; and further that said John and Mary French pay the costs of this reference to arbitration and of court, in full of all demands said Richardson has against them.” The plaintiffs objected to the award, and moved the court to set the same aside, on the ground, “ that in an original claim, submitted to and acted on by said arbitrator, is contained matter involving a question concerning a title to real estate; ” and that no other than personal matters can be submitted to arbitration under the Rev. Sts. c. 114. The court of common pleas recommitted the award and the arbitrator reported as follows : — “ That having met the parties by their counsel, in pursuance of the recommitment, and having understood from them, that the object of the recommitment was to ascertain the exact claims made by the plaintiffs, at the original hearing of the case, he had therefore annexed by wafers to the award on file the original papers, being the evidence of the only claims made and insisted upon by the plaintiffs, in the closing argument of the case, by their counsel, all other claims made by him in the course of the trial having been withdrawn; and it appearing to him, by the evidence, that the full amount of the plaintiffs’ claims, and interest on them from their respective dates, had been paid by the defendant, at the request and for the benefit of the plaintiffs, before the date of the submission, he had accordingly made up and returned the award above mentioned, upon the ground of a payment in money of the plaintiffs’ claims, and upon evidence that the plaintiffs had not repudiated any investment in real estate, until after the defendant had actually paid or become liable to pay a larger amount for the plaintiffs, than the amount of their claims against him and interest; and that the defendant waived any right, which he had to an award in his favor of any sum of money, on account of the payments made by him beyond the amount of the plaintiffs’ claims.” The principal paper, alluded to by the arbitrator, and reported by him, was the following, signed by the defendant: “ I hold in trust for Mary French seventeen hundred dollars, which are now invested in real estate, but not at this time drawing interest, which I will make over to her when requested so to do she paying such sums, for taxes or other expenses, as I may be required to pay on the same, and allowing therefrom such advances or payments, as I may make to her in consequence o' the same.” The plaintiffs, thereupon, further objected to the award, that it did not follow the submission, and that the arbitrator had exceeded his authority. The court of common pleas accepted the award, and rendered judgment thereon for the defendant, for his costs; and the plaintiffs appealed to this court. J. J. French, for the plaintiffs, submitted an argument in writing. E. Blake, for the defendant, submitted the case without argument. — Metcalf, J. (majority) Metcalf, J. This case is rightly brought before us by ap peal. Skeels v. Chickering, 7 Met. 316. The first objection taken to the award is, that it does not follow the submission. The ground of this objection was thus stated in the written argument of the appellants’ counsel: “ There are but two parties to the submission; John French and wife being one party, and Thomas Richardson the other party; and the husband submitted, in his own right, no claim The words in the submission, ‘ or all demands which either of them has against the other,’ have no effect, or this effect only, viz., they give the arbitrator power to award severally, where there has been any severalties.” But this view of the matter is contrary to the decision in Joyce & Anderson v. Haines, Hardr. 399. That was an action of debt on an arbitration bond made by Haines, conditioned to perform an award between the plaintiffs and Haines’s wife, or any of them. The arbitrator made an award of a claim by the plaintiffs against Haines only. The court “held that the award was good, though nothing at all were awarded concerning the defendant’s wife; because the words of the submission were, between them or emy of them.” And so the books uniformly state the law, in similar cases. Hayne v. Hilborne, 2 Lutw. 1625; 1 Nels. Ab. 238; Bac. Ab. Arbit. & Awards, E. 1; Kyd on Awards, (1st ed.) 121, (2d ed.) 182, 183. Indeed, there are authorities, ancient and modern, that when one person, of the one part, and two or more persons, of the other part, or two or more persons of each part, submit' all matters in difference between them, the arbitrator has authority to decide all several, as well as all joint matters, between them, although the words “ or any of them,” “ or either of them,” are not inserted in the submission. See Plowd. 289; Doderidge’s English Lawyer, 177, 178; March on Arbitrements, (ed. of 1674,) 176, 177; Watson on Arb. 106, 107; Russell on Arb. c. 2, § 2; Fidler v. Cooper, 19 Wend. 285; Dater v. Wellington, 1 Hill’s (N. Y.) Rep. 319. The next objection to the award is, that “ in the original claim, submitted to and acted on by the arbitrator, is contained matter involving a question concerning title to real estate,” which is not a subject of such submission. But we cannot find that title to real estate was brought in question by the submission and the claim thereto annexed. The appellee gave to the appellants a writing, in June, 1840, acknowledging that he held in trust, for Mrs. French, the sum of seventeen hundred dollars, which was then invested in real estate, and promising to “make over” the same to her, on request, upon condition, among other things, that she should deduct from said sum such advances or payments as he might make to her in consequence of said sum’s being in his hands, so invested. And the arbitrator states that the appellants had not repudiated any investment in real estate, until after the appellee had paid, or become liable to pay, more than seventeen hundred dollars, in cash, for the appellants. On these facts, there is no ground for saying that the title to real estate was submitted to the arbitrator. The claim was for seventeen hundred dollars of Mrs. French’s money, which the appellee once had in his hands, and which he had invested in real estate, (in his own name, as we must understand,) but which he had fully accounted for before the award was made. The other objection to the award is, that the arbitrator has exceeded his authority, by enlarging upon, explaining, and justifying his first award, when it was recommitted only for the purpose of his stating the exact claims made by the appellants at the original hearing before him. But the record does not sustain this objection. It merely shows that the award was recommitted. And by such recommitment the arbitrator was not restricted within narrower limits than were prescribed by the original submission. He states, indeed, that he understood, from the counsel of the parties, that the object of the recommitment was to ascertain the exact claims made by the appellants, at the first hearing. He therefore annexed to the award the original papers, being the evidence of the claims made and insisted on by the appellants, in the closing argument of the case. He then states the grounds on which he made the first award. We see, in this, no legal ground for the objection that he exceeded his authority. These are the only objections which the appellants have made to the award; and the court have not sought for any others. Judgment of the cou/rt of common pleas affirmed.