Charles W. Karthaus, Plaintiff in error, vs. Francisco Yllas y Ferrer and Others, Defendants in error

Charles W. Karthaus, Plaintiff in error, vs. Francisco Yllas y Ferrer and Others, Defendants in error. There is a class of cases, upon'awards, to be found in the books, in which arbitrators have b.een held to more than ordinary strictness, in pursuing the terms of the submission, and in awarding upon the several distinct matters submitted, upon the ground of this submission being conditional, ita quid. But the rule is to be understood, with this qualification; that in order to impeach an award made in pursuance of a conditional submission, on the ground of part only of the matters in controversy having been decided, the party must distinctly show, that there were other points in difference, of which express notice was given to the arbitratbrs ; and that they neglected to determine them. {227} One partner, during the continuance of the partnership, cannot bind-the other partner to a submission of the interests of both, to arbitration j but he might bind himself so as to submit his own interests to such decision. {228} It is a settled rule in the construction of awards, that no intendment shall be indulged to overturn an award, but every intendment shall be allowed to uphold it. {228} If a submission be of all actions, real and personal, and the award be only of actions-personal, the award is good; for,-it shall be presumed, no actions real were depending between the parties. {228} When, upon a submission by one partner of all matters in controversy between the partnership and the person entering into the agreement of reference; an award was made, directing the payment of money, in an action on the bond, to abide by the award ; the breach assigned, was, that the partner who agreed to the reference did not pay, &c.; this is a sufficient assignment of a breach, as he only who agreed to the reference was bound to pay. {231} ON the 16th of January 1823, the plaintiff in error gave ..an arbitration bond, in the usual form,- with sureties,' to the defendants in error, in which it was set forth, that, “ whereas certain disputes, differences, and controversies, have arisen, and are still depending, between the above bounden Charles W. Karthaus,' acting for the late house of Charles W. Karthaus & Co. and himself, -and the. above' named Francisco Yllas y Fer-.rer, and Josef Antonio Yllas, for the ending and determining the disputes, differences, and controversies, aforesaid, and ail actions, suits, claims, and demands whatsoever, concerning thie same, the said parties have agreed to: refer the same to the award, judgment, and determination, of Lewis Brantz and Henry Child, both of Baltimore, merchants;'arbitrators indifferently chosen, and named by and on behalf of the said parties, to award, order, arbitrate, judge, and determine, concerning-, the same. And if the said arbitrators cannot determine the same, that then the same shall be fully ended and determined by a third person, to be by them chosen as an umpire, in,such manner as hereinafter is, in that behalf, mentioned and expressed. “Now, the condition of this obligation is such, that if the above bound Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and bn his and their parts, in and by all things, stand to, obey, abide, perform, fulfil, and keep the award, arbitrament, order, determination, final end, and judgment, which shall be by them, the afox-esaid arbitrators, made, of and concerning the premises, and of all disputes, differences, actions, suits, claims, and de-. mands whatsoever, tóuching and concerning the same, so as' such award, arbitrament, determination, final end, and judgment of the said arbitrators, of and in the premises, be by them made and given up in writing under both their hands and seals, ready to b,e delivered to each of the said parties in controversy, in fifty days from the day of the date hereof. “ And if they the said arbitrators, of and in the said premises, cannot agree, end, and determine the same, in fifty days froni the day of the date hereof, that then if the said Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and on his and their parts, in and by all things, stand to, obey, abide, perform, fulfil, and keep the award, arbitrament, and umpirage, of the above named arbitrators, and such third person and umpire, as they-the said arbitrators shall indifferently name, elect, and choose, for the ending and determining the same premises,' or a majority of them, so as such award, umpirage, and judgment of the said arbitrators and umpire, or a majority of-them, of and concerning the same, be by them so made and given up in writing, under- their hands and seals, ready to be delivered to each of the said parties in controversy, in sixty days from the day of the date hereof, This obligation to be void and of no- effect, otherwise the same shall remain in full force'and virtue.” Upon this reference, the following award was made, under the hands and seals of the arbitrators and the umpire.— We, the undersigned, Henry Child, arid' Lewis Brantz, as arbitrators, and Michael M’Blair, as umpire, acting in virtue of the annexed bond or instrument of writing, do hereby award, and'adjudge, that the late firm of Charles W. Karthaus & Co. pay, or cause to be paid, unto Francisco Yllas y Ferrer and Josef. Antonio Yllas, or their representatives, the sum of fourteen hundred and seventy-five dollars, for a balance of the ge-, -neral account current between the parties; and also the sum of thirteen hundred and ninety-eight dollars, for a balance arising out of the moneys recovered for the brig Arogante Barcelo-nese arid cargo; in which award,, a parcel of cutlasses, or their proceeds, are considered as becoming- the property of said Yllas y Ferrer. Given under our hands and seals, in Baltimore, this 8th of March 1828. To an action on the bond, against the plaintift in error, he pleaded the condition, and that no award had been made. The defendants in error replied, and answered, and set it out as stated;, and there was a. demurrer to the replication, which the Court overruled, and a judgment was entered for the plaintiff below. In this judgment error was alleged; and before thjs Court, the plaintiff in error sought to-maintain-— - ■ 1. That the award is not agreeable to the submission. - 2. It is not certain, final, and mutual. 3. It- directs an act to be done by strangers. 4. It is defective in other respects. The case was argued by Mr.1 Hoffman, and Mr:.Mayer, for the plaintiff in error; and by Mr. Wirt, Attorney General, for the defendants. For the-plaintiff in-error.— The object of the submission was, to have all the matters in controversy adjusted by the arbitrators, and the words “ certain disputes,” so meant and intended, 2 Caines’ Rep. 320. 15 John. Rep. 197.' Com. Dig. Arbitration, 4 D. 1. This was a submission between all the parties, the plain-tiff in error,'and the.’firm of which he was,a member, there being partnership and individual'disputes; and the award does-not apply to all, but only to the plaintiff in error. It should profess, to decide e.very thing" in the premises. The submission being conditional, ita quod, the referees were bourn] to pursue, strictly, the submission in all its tprms, and to award on all matters submitted to them. 2 Gallison’s Rep. 778.'Cokes’ Rep. Bascoe’s case, 193. i. Salk.70. Ryd on Awards, !76. . 2. An award must' be, 'so certain; that it may be pleaded in bar, to an action against tlie parties to it; which is not the fact in this cáse. 1. It does not comprehend all the parties,- nor decide upon all the subjects in dispute; it is uncertain- and contradictory, and there are no avermfents in the replication which will supply these deficiencies — there should have been an averment as to the members'of the firnNr-as to the accounts, and the'transactions out-of which the accounts-grew. By no-form of pleading, could the plaintiff in error show; he had, in this case,-satisfied the claims of the defendant in erroi1. The award should have designated the claims on' the plaintiff, individually, and on the firm; nor does,it appear by it, that Charles W. ■Karthaus, and C- W- Karthaus 8c Co., were the same persons. Cited, 1 Sacón’s Abr. Arbif. and Award, pi. E. 1. 216. 1 Com. Dig. 666. Tit. Awd. pi. E. 4. 7 East, 81. 5 Wheat. 394. In an action on an award, the plaintiff is not bound to set out the particulars; but if he proceed on the bond, he must set out the breaches with particularity. . The defendant may do' it, but it is the duty of the plaintiff; Kyd on Awards, 195. That part of the award, by which “ a parcel of .cutlasses, or their proceeds, are considered as becoming the property of the. said Yllas y Ferrer,” is altogether uncertain. It does not state what cutlasses, or what the^amount of the proceeds,' considered as the property of Yllas y Ferrer, were included, or referred to. Mr. Wirt, for the defendants in error.— The Court are always disposed to maintain awards, Caldwell on Arbitrations, 123. The pleadings do not exhibit any thing from which error can be imputed. The defendant should have rejoined, and shown that there were other parties, and other matters, than those stated in the award;' having failed to do this, there is nothing before the Court but the submission and the award; and there is .nothing to show, that there were other persons interested, and. other matter to be acted on, but those stated in the award. This form of pleading, is only waived when the submission sets out every matter at large. Cited, Kyd on Awards, 171. 7 East, 81. The firm is not a party to- the submission; and the .partner who submitted to the arbitration, will alone be bound by it, and to pay the amount awarded', Kyd, 40. As to the set-off, in such a case of individual and partnership accounts, cited 5 T. Rep. 493. 6 T. Rep.' 582-3. Certainty, to a common interest only, is required in awards. This award is sufficiently certain. Kyd,. 132. 1 Caines’ Rep. 314, 315. 14 John. 108, 109. If the award be certain in part, it may be executed for so much as is certain; although another part is uncertain; unless the part which is uncertain is the consideration for that which the uncertain part was given. 5 Wheat AQ^.. The award here is entirely for tlie defendants in error, and if any part of it is uncertain, which is denied, the plaintiff in error cannot complain. 11 Wheat. 448. The cutlasses and the proceeds are sufficiently designated, and if ■(hey.were not, it was for the plaintiff below, only, to complain. [MAJORITY — Mr. Justice Thimble] Mr. Justice Thimble delivered the opinion of the Court:— This was an action of debt, brought by Francisco Yllas, and Josef Antonio YUas, against Charles W.. Karthaus, on an arbitration bond, in the Circuit Court of the district of Maryland. The defendant, after oyer of the condition of the bond, pleaded, no award made, fee. The plaintiff replied, setting forth the award in hse.c verba, and assigning a breach; the defendants demurred generally, and"' the plaintiff joined in demurrer. The Circuit Court having given-judgment, upon the demurrer, in favouiyof the plaintiffs; the defendant has brought the case up, by writ cp error, for the consideration of this "Court. The first and principal ground relied on by the plaintiff in error, for the reversal of the judgment, is, that the award is not agreeable to the submission, in this; that two several distinct controversies, the first between the plaintiffs and the late' house o'f Charles W. Karthaus & Co., and the second between the plaintiffs and Charles W. Karthaus, individually, were submitted to the referees, and that they left the latter undetermined. The condition of the bond, after reciting, that certain disputes, differences, and controversies have arisen, and are still depending between the above bound Charles W. Karthaus, acting for his late house of Charles W. Karthaus & Co., and for himself and the above named Francisco Yllas y Ferrer, and Josef Antonio Yllas, See., “ refers the same to the referees named, and -their umpire, and binds the said Charles W. Karthaus, &c. to abide by and perform their awardso as such award, See. “ of the arbitrators, of and in the premises, be by them made and given up in writing, under their hands and seals, ready to be delivered to each of the said parties in controversy, in fifty days.” The arbitrators, and their umpire, within the time limited by the submission, made and delivei’ed their award in writing, • under their hands and seals, in the following words,' to wit: “We, the undersigned, Iieriry Child and Lewis Brantz, as arbitrators, .and Michael M’Blair, as umpire, acting in virtue of the annexed bond, or instrument of writing, do hereby award and adjudge, that the late firm of C. W. Karthaus & Co. pay to Francisco Yllas y Ferrer, and Josef Antonio Yllas, or their representatives, the sum of fourteen hundred and severity-five dollars,'for the balance of the general account current between the parties, and also the sum of thirteen hundréd and ninety-eight dollars, for a balance arising out of moneys received for the brig Arogante Barcelonese, and cargo; in which award, a parcel of cutlasses, or their proceeds, are considered as becoming the property of the said Yllas y Ferrer.” • It is plainly seen, from the face of the award, that the arbitrators have not contradistinguished between Charles W. Karth aus, as a member of the late Louse of Charles W. Karthaus & Co., and Charles W. Karthaus, as an individual,"unconnected with his late house. The. argument is, that this omission of the referees vitiates the award. It is said that this, being a conditional submission, ita quod, the arbitrators were bound to .pursue the submission strictly, and to 'award, of and concerning every matter referred? to them. In support of this argument, the counsel referred to Randall vs. Randall, 7 East, 80, and several other cases less apposite. That there is a class of cases in the books, in which arbitrators have been held to a more than ordinary strictness in pursuing the terms of the submission, and in awarding upon the several distinct matters submitted, upon the ground of the submission being-conditional, ita quod, is conceded. The case of Randall vs. Randall is a leading case of that class. Lord Ellenborough, C. J. in delivering the opinion of the Court, says: u The arbitrators had three things submitted to them; one was to determine all actions, &c. between the parties; another was to settle what was to be paid by the defendant for hops, poles, and potatoes, in- certain lands; the third was to ascertain what rent was paid by the plaintiff, to the defendant, for certain other lands. The authority given to the arbitrators, was conditional, ita quod, they should arbitrate upon these matters, by a certain day. The arbitrators have stopped short, and have omitted to settle .one of the subjects of difference stipulated for.” This- case was adjudged, according to the rule laid down in the books; that if the submission be conditional, so as the arbitrator decide of and concerning the premises, he must adjudicate upon each distinct matter in dispute, which he has noticed. Kyd, 177. But the rule is to be understood with this qualification; that in order to impeach an award, made in pursuance of a conditional submission, on the ground only of part of the matters in controversy having been decided, the party must distinctly show, that there were other points in difference, of which express notice was given to the arbitrator, and that he neglected to determine them. Caldwell, 105. Kyd, 177. Cro. Car. 216. Baspole’s case, 8 Co. 98. Ingraham vs. Milnes, 8 East’s Rep. 445. That Lord Ellenborough understood and intended to apply the rule, as thus qualified, in Randall vs. Randall, is manifest. For Mr. Espinasse,in commenting upon Baspole’s case, having observed, that it is said in' that case, that though there be many matters in controversy, yet if only- one bfe signified to the arbitrators, he may make an award for that, for he is to determine according to the allegata st probata — -and it is in every' day’s practice, that an award may be good in part, and bad in part. Lord Ellenborough, in answer to.that argument, replies — “ That is, where it .does not appear there is any notice to the arbitrator, on the face of the submission, that there is any other matter referred to him, than those which are mentioned, to him at the time of the reference. But here it does expressly appear, that there was another matter referred, on which there is no arbitrament.” In this casé, it is not pretended that any notice was given to the arbitrators of any other matter, unless that notice was given on the face of the submission. The question then is,’ does it distinctly appear, from the face of the submission, that any other point of difference between parties, was submitted, and of which the submission itself gave the arbitrators notice, but which they have neglected to determine. If, as the argument supposes, there was any point in difference, which concerned Charles W. Karthaus, individually, as contradistinguished-from the points in. difference which concerned him as Charles W. Karthaus, of the late firm of Charles. W. Karthaus & Co., what was.that point of difference? No ■ satisfactory answer has been given, and it is believed none can be given, to this inquiry. How then can it be maintained, that a distinct point in difference between the parties 'was referred, and by the reference itself notified to the referees, which they have neglected to.determine ? The case of Ingraham vs. Milnes is a strong authority to stow, that although the submission be conditional, ita quod; there must be a distinct specification, as in Randall vs. Randall, to sustain the objection, that part has been omitted by the arbitrators. Here the submission is in very general, and, we think,, in very vague and ambiguous terms. It speaks of disputes, differences, and controversies, between Charles W. Karthaus, acting for the late house of Charles W. Karthaus 8c Co., and for himself and the plaintiffs. But hów, or in what he acted, for the one or the other, is.not' specified. The terms “late house,” imply the former existence, but present non-existence, of the late house pf Charles W. Karthaus & Co. He may be the only surviying-partner, the firm having ceased, by the death of the other members. But if the firm was continuing, .Charles W. Karthaus, while he must be admitted to be perfectly competent to submit tp reference his own interests in the firm, could' not, by his submission, bind his partners. He might bind himself to perform whatever, the award directed the firm of which he was a member,-to do; so that, either way, it was a submission of his own interest only. In order to overturn the award, it. is'not enough that he may have had different and distinct interests in his individual and in his partnership character. It is a settled rule, in the construction of awards, that no intendment .shall be indulged, to overturn an award, but every reasonable intendment shall be allowed, to uphold it. Thus, if a submission be of all actions, real and personal, and the award be only of actions personal, the award is good — for it shall be presumed no actions real were depending- between the parties. Kyd, 72, and B aspóle’s case, before cited. So in this case, although the submission.speaks,'in general terms,' of disputes, differences, and controversies, with Charles W. Éarthaus,. acting for his late house- of C. W. Karthaus & Co. and for himself; it shall not be intended there were any controversies with C. W. Karthaus, individually, other than those decided by the arbitrators. If any such did exist, inasmuch as they are hot specifically .and distinctly set forth in the submission, so as to give notice to the arbitrators, it was the ' duty of the party to show, by averment and proof aliunde, they w.ere brought before the referees. There is no analogy between this case and Lyle vs. Rogers, 5 Wheat. 394, cited at the argument. In that case, it was decided, that where claims against a party, both in her own right, • and in her character of administratrix, were submitted to arbitrators; it was a valid objection to the award, that it awarded a gross sum to be paid by her,-without distinguishing between-what wa's to be paid by her in her own right, and what in her representative character The Chief Justice,-in delivering the opinion of the Court, explains the reason and ground of thede-' cisión, by observing, “ if this award was.made against Mrs. Dennison, as administratrix, she would not only be deprived by its form, of the right to plead a full administration, (a defence which might have been made before the arbitrators, and on which their award does not show, certainly, that- they have decided ;) but also" of the. right to use it in the settlement of her ■ accounts, as conclusive evidence, that the money was paid in her representative character. If this objection to the award is to be. overruled, it must be’ on the supposition that it is made against her personally; yet the státement of facts shows the claim against her to be in her representative .character.” This' reasoning cannot apply to the case before the Court. It is of no sort of consequence to C. W. Karthaus, whether he is directed to pay as Charles W. Karthaus, individually, or as Charles W. Karthaus, of his late house of C. W-. Karthaus 8c Co. In each case-he is bound, personally, to pay, having bound himself so to do by'the submission; -and the award, if in any case it would be evidence for him against the firm, would not be conclusive, as he had no power to bind his partners, if any existed, by his submission. It is objected- that the award is' not certain, final, and mutual. It was said, in argument, that' as the first sum awarded, is expressed to be for a “ balance of the general account current, between the parties;-the general account current, must be understood to include all accounts be- - tween them; and hence, that the second sum awarded, for a balance arising out of moneys received for the brig Arogante Barcelonese, is included in the first, Nand the. party thus twice charged; or at least, that it does not certainly appear otherwise.” We think there is no. foundation for this argument. To indulge such a.supposition, would impute either manifest injustice, or gross negligence, to the referees. Great stress was laid, in the argument, on the uncertainty of the closing'clause of the award, in these words, “in which award,-a parcel of cutlasses are considered as becoming the property of said Yllas y Fer-rer.” There is considerable doubt arid uncertainty, as to the meaning of the arbitrators, in the use of these terms. And had this uncertainty appeared in any part of the award, intended for the benefit of the defendant, it would, perhaps, be fatal to the whole award. Had that been the case, it would be hard and unjust, to compel him to perforin that part of the award which is onerous to him, when he could not have, on account of its uncertainty, that which would be beneficial to him. But, however doubtful the precise intent and meaning of this part of the award may be, it is ■ certainj it was intended as á benefit in some way, to Yllas y Ferrer, over and above the two sums of money directed to be paid to the plaintiffs. The defendant can have no reason to .complain that the plaintiffs, or either of them, may not, on account of this uncertainty, be able to obtain all the benefits intended by the award; nor can it furnish any reason for withholding from them, that to which they are certainly entitled. It is deemed a sufficient answer, to the objection of want of mutuality in the award, to remark, that great stress was laid, in the-early cases, upon the mutuality of an award; but at present, it^is by-no means-considered necessary that each party should be directed to do, or not to. do-, any particular thing,’ Cald. 113. Two had submitted to an award; nothing, was awarded as to one party, but that all actions should cease. The Court held it a good award, Harris vs. Knight. 1 Levz, 58. In Palmer’s case, 12 Mod. 234, one party was directed to pay money to the other, without any directions being given to the latter in any way; and, again, it was awarded that A should pay B 40 shillings for a trespass; Freeman, 204. The respective awards were considered unimpeachable: These cases fully establish the principle above laid down. An award is regarded as final, when it is an absolute conclusive adjudication of the matters in dispute; and there-is no reason to doubt the conclusiveness of the adjudication in this case, as to the two sums of money directed to be paid; and that the award will operate as a bar to any future litigation, upon the accounts for which they are given. Again: It is objected that the award directs an act to be done by strangers. This objection grotvá out' of the direction in the award, that “the late firm of C. W. Karthaus & Co. pay, &c.” Whatever might be the forcé of this objection, if it were true in point of fact, we cannot so regard it. So- far as appears upon the record, the late firm or house of C. W. Karthaus & Co. and C. W. Karthaus are one and the same person; or more properly speaking,it does not appehr.that there is any other person, in esse, belonging to that firm, than C. W. Karthaus himself. If there be any other person, in esse, of the late house of C. W. Karthaus & Co. it cannot be truly affirmed that he, and the house of which he was a partner, are strangers to each other. But we cannot, consistently with the rules of law, presume or intend there is any other; indeed, in support of the award, it may reasonably be intended there is not, as the party objecting was cognizant of the fact, and might have shown it, if true, but has not. The direction that the late firm of C. W. Karthaus & Co. shall pay, unquestionably includes C'.'W. Karthaus; and no other person appearing to exist, it is equivalent to a direction that he shall pay. This reason is applicable to the last ground assumed by the counsel for the plaintiff in error, for a reversal of judgment; namely, that the replication is insufficient, because, in assigning a breach, it only alleges C. W. Karthaus had not paid. As no other was, or could be bound by the submission and award, to .pay, and he .was bound; it was a sufficient assignment of a breach of the condition of his bond, to allege that he had not paid the money, awarded in favour of the plaintiffs. Upon the whole, it is the opinion of this Court, that there is no error in the judgment of the Circuit Court, and the same is ■ affirmed, with costs and damages.