An award is not void because it is in the alternative and
contingent, nor because one of the alternatives requires the party
to do an act in conjunction with others not parties to the award
and over whom he has no control.
Page 11 U. S. 597
Two actions of debt, commenced at law by Carson against Thornton
upon two bonds for the payment of money, were referred, by consent
under a rule of court to arbitrators, who awarded that the first
action should be marked and considered settled, and that the other
also should be marked and considered settled provided that the
defendant, Thornton, in conjunction with the trustees of the gold
mine company of North Carolina, should convey and secure by a deed
and assurance legally executed, with proper and usual covenants,
unto John K. Carson, his heirs and assigns, for the benefit of the
said John, and the heirs of Thomas Carson, deceased, on or before
the 1 January, 1811, one eleventh part of all the minerals and
mines that might thereafter be found upon a tract of land in the
County of Montgomery and State of North Carolina, which by deeds
bearing date 5 December, 1805, was conveyed by the said John K.
Carson to the said William Thornton, and by the said William
Thornton to the said trustees of the gold mine company, and that if
such conveyance and assurance should not be made on or before the
said 1 January, 1811, then in the first suit, judgment should be
entered up by the court for the plaintiff (Carson) for the penalty
of the bond, to be released on the payment of a certain sum
expressed on the award, and also in the second suit judgment should
be entered for the plaintiff for the penalty of the bond to be
released on the payment of another sum also expressed in the award,
and that upon receiving such conveyance and assurance, Carson
should convey to Thornton five shares in the gold mine company of
North Carolina which Carson had subscribed for on 1 April,
1806.
Exceptions were taken to this award 1st, because it is not
final; 2d, because it is uncertain; 3d, because it is unreasonable;
4th, because it is contingent and conditional; 5th, because it is
against law, and 6th, because it is no award.
But the court below overruled the exceptions and rendered
judgment for the amount of the money mentioned in the award.
Page 11 U. S. 598
The defendant Thornton brought his writ of error, and his
counsel insisted upon the following errors.
1. That the award was not final or certain, because its final
determination depends on a contingency, and would be an award in
favor of the plaintiff in one event and in favor of the defendant
in another. It was also uncertain because there was no way of
ascertaining whether the act to be done by the plaintiff in error
and the other persons was or was not done, nor whether the
conveyances were made as directed, nor whether they were "proper
and sufficient," nor how nor by whom the entry was to be made in
the suit, and the arbitrators could neither reserve this to be
determined by themselves, nor leave it to be done by others.
It was also uncertain because it is not stated when the entry
("settled") was to be made in the suit in the one event, nor the
judgment for the plaintiff in the other.
2. The award was bad because it required the plaintiff in error
to do what was manifestly out of his power,
viz., to get
other persons to join him in executing a deed, which, if not
impossible, was at least unreasonable.
It was also unreasonable because it required a deed to be made
by the plaintiff in error, who is stated to have no title nor
interest in the thing to be conveyed, and because it only required
that the deed should be made, not that it should be delivered, so
that the same would not have been binding upon the defendant in
error; and therefore the award being uncertain, unreasonable and
inconclusive as to one party, was to be so considered as to both.
And
3. That the award was repugnant and void, being at first in
favor of the plaintiff in error and determining that the suit
should be entered "settled," and afterwards awarding that a
judgment should be entered for the defendant in error upon a
certain contingency.
Page 11 U. S. 599
WASHINGTON, J. delivered the opinion of the Court as
follows:
Under a rule which was served upon the plaintiff in error to
show cause during the term at which the rule was made why judgment
should not be entered on the award, he appeared and assigned for
cause that the said award was uncertain, not final, unreasonable,
conditional, and void.
These objections are strictly technical, and referable solely to
defects supposed to appear on the face of the award, and do not aim
to impeach it for any one of the causes which the law of Maryland,
passed in October, 1778, ch. 21, declares to be sufficient for
setting aside an award.
This Court, not meaning to decide whether any and what other
objections than those stated in the statute of Maryland may be
alleged against entering judgment upon awards made under orders of
reference, will proceed to consider those which were stated in this
case.
It is contended that this award is not final or certain because
it depends on a contingency, and will be an award in favor of the
plaintiff in one event and in favor of the defendant in another.
This Court does not so understand the effect of this award. It is
clearly in favor of the defendant in error in either event
contemplated by the referees. The plaintiff is required, in
conjunction with certain other persons, to convey to the defendant,
for the benefit of himself and the heirs of Thomas Carson, on or
before a fixed day, certain property specified in the award, or to
pay the amount of the two bonds in suit. If he made the conveyance,
then the referees have awarded certain property to the defendant,
and if he failed to do this, judgment was to be entered against him
for the amount of those bonds. The defendant has his election to do
either, and upon
Page 11 U. S. 600
satisfying the court at the time he was required to show cause
why judgment should not be entered on the award, that he had made
such a conveyance as the award prescribed, the court ought to have
ordered the suits to have been entered "settled."
If the plaintiff had made the conveyance, and the defendant,
who, upon that act being done, was required by the award to
transfer five shares in the gold mine company of North Carolina to
the plaintiff had failed to do so, the court ought to have ordered
the suits to be entered "settled." But the plaintiff, having failed
to perform the act upon which alone this transfer was to be made
and the suits were to be entered "settled," became liable to pay
the sums awarded by the referees as the equivalent for the property
to be conveyed, and consequently the court was right in entering
the judgment for the sums awarded.
There is no uncertainty in all this, or at least none which
might not be rendered certain by the act of the plaintiff in
conformity with the award and which must not necessarily be certain
at the time the court was to render judgment on the award.
The plain meaning of the award is that the plaintiff was to pay
the amount of the bonds in suit unless, by a certain day, he made a
conveyance to the defendant of the property described in the award,
in which latter event he was to receive from the defendant a
transfer of five shares in the gold mine company and to be
discharged from the payment of the money by an entry to that effect
to be made in the suits referred. But if he refused to make the
conveyance, then judgment to be entered against him for the amount
of the bonds in suit. If he entitled himself to this entry in his
favor by performing the other branch of the alternative and the
defendant failed to perform his part of the award, then the
defendant could receive no benefit from the award and the suits
were to be entered "settled." Whether the conveyance from the
plaintiff and the transfer by the defendant were made in due form
were questions proper for the consideration of the court.
The award is said to be uncertain because the names
Page 11 U. S. 601
of the trustees who are to join in the conveyance and of the
heirs of Thomas Carson are not stated, nor does the award declare
who is to prepare and tender the deed. These too were questions
proper for the consideration of the court below, but form no
objections to the award. It does not appear from the record that
the defendant had refused or failed to do everything which the law
required him to perform to entitle him to the judgment of the
court, and we must therefore presume that no delinquency on his
part was shown by the plaintiff; that if it was necessary for him
to prepare and tender the deed such as the law required, he did so
to the satisfaction of the court. If he failed to do that which
would warrant the court in entering judgment on the award, it was
the duty of the plaintiff to have shown this as cause against
entering the judgment and to have spread all the facts upon the
record which might enable this Court to decide whether the court
below acted correctly or not.
The award is said to be unreasonable because it requires the
plaintiff to get other persons to join in the conveyance to the
defendant which he may not be able to do. But surely if the
plaintiff was bound to pay the bonds in suit or to convey a good
title to certain property, which title would not be valid in the
opinion of the referees unless other persons joined in the
conveyance, he cannot surely complain that he is ordered to pay the
money unless he executes such a deed as will pass a good title. It
is his misfortune if he cannot make the title, but it is no reason
why, in that event he should not pay the money.
There are other causes assigned why the award is unreasonable,
but as the facts to prove it unreasonable do not appear in the
record, they cannot be noticed by the court, even if such
objections would in law be sufficient to set aside the award.
Judgment affirmed with costs.
