Where claims against a party, both in his own right and in a
representative character, are submitted to the award of
arbitrators, it is a valid objection to the award that it does not
precisely distinguish between moneys which are to be paid by him in
his representative character and those for which he is personally
bound.
An award may be void in part and good for the residue. But if
the part which is void for uncertainty be so connected with the
rest as to affect the justice of the case between the parties, the
whole is void.
This was an action of debt against the defendant on a bond given
by Jerusha Dennison, and the defendant, to the plaintiffs, with a
condition to perform the award of certain persons chosen to
arbitrate all differences, &c., between the plaintiffs and
Jerusha Denison, either as administratrix of Gideon Dennison,
deceased, or in any other capacity. The condition of the obligation
is in these words:
"Whereas the said Jerusha Dennison and the said James Lyle and
Joshua B. Bond have agreed to refer all matters in dispute between
them to the award and arbitrament of David Winchester and Thomas
Tenant of the City of Baltimore, and in case they differ in
opinion, then to them and such third person as the said David
Winchester and Thomas Tenant shall choose and appoint. Now the
condition of the obligation is such that if the above bound Jerusha
Dennison, her heirs, executors and administrators, do and shall
well and truly stand to, abide by, and keep the award and
arbitrament of the said
Page 18 U. S. 395
David Winchester and Thomas Tenant, arbiters, indifferently
named an appointed by them to arbitrate, award, and adjudge of and
concerning all actions and causes of actions, debts, dues,
controversies, claims or demands whatsoever, both at law and in
equity, which the said James Lyle and Joshua B. Bond have, or
either of them hath, against her the said Jerusha Dennison, as
administratrix of Gideon Dennison or in any other capacity. Or in
case the said arbitrators shall differ in opinion, if then the said
Jerusha Dennison, her heirs, executors and administrators and every
of them do and shall stand to, abide by, perform and keep the award
and arbitrament of them the said David Winchester and Thomas
Tenant, or either of them, and of such discreet and indifferent
person as they shall elect and appoint as a third person as
aforesaid, then this obligation to be void, and of none effect,
otherwise to be and remain in full force and virtue."
Upon this submission, the following award was made:
"Whereas certain differences have arisen between Joshua B. Bond
and James Lyle, of the City of Philadelphia, in the State of
Pennsylvania, of the one part, and Jerusha Dennison, of Harford
County, in the State of Maryland, of the other part, and whereas,
for the purpose of putting an end to the said differences, the said
parties, by their several bonds, bearing date the fifteenth day of
November last past, have reciprocally become bound, each to the
other, in the penal sum of $12,000 current money of the United
States to stand to, abide by, perform, and keep the award of David
Winchester
Page 18 U. S. 396
and Thomas Tenant, arbiters indifferently named and appointed to
arbitrate, adjudge, and award of, and concerning all actions or
causes of actions, debts, dues or demands whatsoever, both of law
and in equity, which the said Joshua B. Bond, and James Lyle, or
either of them, have against the said Jerusha Dennison, as
administratrix of Gideon Dennison, or in any other capacity: "
"Whereupon we, the above named arbitrators, after having heard
the allegations of the parties, proceeded to an examination of the
accounts, documents and proofs by them respectively produced, and
having maturely considered the same, do adjudge and award in manner
and form following: "
"First. We do adjudge and award that there is due from Jerusha
Dennison to Joshua B. Bond and James Lyle, the sum of $8,726.41,
with interest from this date until paid; upon the payment whereof,
all suits at law and in equity between them shall cease and
determine. And,"
"Second. We do adjudge and award that upon the payment by the
said Jerusha Dennison of the sum above awarded, with interest, as
aforesaid, the said Joshua B. Bond and James Lyle shall execute to
the said Jerusha Dennison a good and sufficient release of all
claims against her, both in her private capacity and as
administratrix of the late Gideon Dennison, and also that they
shall reconvey or release, as the case may require, all lands
heretofore conveyed or pledged to them by the late Gideon Dennison,
as a collateral security, and further that they shall deliver
Page 18 U. S. 397
to the said Jerusha Dennison or account for on oath all bonds,
notes, bills, or other securities heretofore given to them by the
late Gideon Dennison as collateral security. And"
"Lastly. We do adjudge and award that this award shall be
conclusive between the parties."
The sum awarded by the arbitrators not having been paid, this
suit was instituted. The defendant, after praying oyer of the bond
and of the condition, pleaded no award. The plaintiffs, in their
replication, set forth the award, and assigned as a breach of it
the nonpayment of the sum of $8,726.46, with interest, awarded to
be due to them from the said Jerusha Dennison. The defendant
rejoined that among the matters in dispute between the parties was
a dispute relating to certain lands conveyed in fee simple by
Gideon Dennison, the intestate of the said Jerusha Dennison, to the
plaintiffs, in his lifetime, without any condition or defeasance
expressed therein, but with an understanding and agreement between
them that the same should be held by the plaintiffs as a collateral
security for the payment of whatever debt was due from the said
Gideon Dennison to the plaintiffs. And also as to certain other
lands and land titles, pledged in like manner as a collateral
security for the said debt. But because the said matters in dispute
are left unsettled by the said award, and for other causes
appearing on the face of the said submission and award, the
arbitrators made thereon no award &c.
To this rejoinder the plaintiffs demurred, and the defendants
joined in demurrer. It was, however,
Page 18 U. S. 398
afterwards agreed between the parties, that instead of arguing
the demurrer, the matter contained in the foregoing pleadings and
the law arising thereon should be subject to the opinion of the
court on a statement of facts made by the parties, and the
questions stated as arising thereon.
This statement admits the submission, the appearance of the
parties before the arbitrators, the award, due notice thereof, a
demand of the sum awarded to be due, and a refusal to pay the same.
The statement also contains certain letters which passed between
the plaintiffs and Jerusha Dennison, and Samuel Hughes, acting for
and in behalf of the said Jerusha, dated in 1799 and 1800, and also
a letter from the plaintiffs dated in 1800, addressed to Mr.
Hollingsworth, a lawyer of Baltimore, containing a copy of the
correspondence above mentioned and transmitting him a note for
$5,568, drawn by Gideon Dennison in his lifetime, of which the
plaintiffs were holders and which had been regularly protested. On
this note, Mr. Hollingsworth was requested to take the proper means
to obtain payment. The correspondence admitted that "grants of
lands in North Carolina and Tennessee had been given as security,
without any acknowledgment or receipt for the same," but contained
no information whatever ascertaining what grants were so given,
although full information on that subject had been requested on the
part of Jerusha Dennison.
Page 18 U. S. 405
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The questions submitted to the
Page 18 U. S. 406
Court on the statement of facts made by the parties were
"1st. Whether the said letters so offered by the defendants, or
any of them, are competent and sufficient evidence to prove what
matters of dispute or controversy were submitted to the said
arbitrators under the said bond?"
"2d. Whether the said award in the terms aforesaid, or taken in
connection with the evidence so offered by the defendant (if such
evidence be decided by the court to be competent and admissible) is
valid, and sufficient in law?"
The matter contained in the letters was pleaded by the defendant
in his rejoinder as being part of the subject in controversy, and
is consequently, confessed by the demurrer. Had the demurrer been
argued, therefore, the first question could not have arisen. But as
a statement of facts has been substituted for the demurrer, we
presume, the question respecting the admissibility of the evidence
offered by the defendant is to be considered as if issue had been
joined on the fact stated in the rejoinder. So considering it,
there is, we think, no doubt of the admissibility of the testimony,
nor of its competency, taken in connection with the award itself,
to prove, that a dispute existed respecting the lands mentioned in
those letters, which was brought before the arbitrators.
We proceed to the second question, which respects the validity
of the award.
The first exception taken to this award is that it omits to
state, whether the sum due from Jerusha Dennison was due from her
in her own right or as
Page 18 U. S. 407
administratrix of Gideon Dennison. The claims upon her in both
characters are submitted to the referees, and they ought to have
decided upon all, and to have distinguished between those which she
was required to pay in her representative character and those for
which she was bound personally. Had this case been depending in
chancery, where alone the two claims could have been united in one
suit, the Chancellor would unquestionably have discriminated
between them, and would, in his decree, have ascertained in what
character the whole sum was to be paid, or how much was to be paid
in each. 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 defense 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
statement of facts shows the claim against her to be in her
representative character. There is certainly a want of precision in
this part of the award, which exposes it to solid objection and
might subject Mrs. Dennison to serious inconvenience.
The second exception to which the Court will advert affects
still more deeply the merits of the award, as well as its
justice.
It is apparent from the pleadings in the cause,
Page 18 U. S. 408
from the facts stated, and from the award itself that titles to
land were deposited by Gideon Dennison in his lifetime with the
plaintiffs as collateral security for the debt claimed by them, and
that the conveyances purported to be absolute. Not only was there
uncertainty as to the right of redemption, but it was, so far as
the Court can discover, absolutely uncertain what lands had been so
conveyed.
This subject appears to have been brought before the
arbitrators, and they have awarded upon it. Is their award
sufficiently certain to give Jerusha Dennison the benefit they
intended her? They have awarded
"that the said Joshua B. Bond and James Lyle shall reconvey or
release, as the case may require, all lands heretofore conveyed or
pledged to them by the late Gideon Dennison as a collateral
security."
The award does not determine what lands were so conveyed. If the
arbitrators had directed that all the lands conveyed or pledged by
Gideon Dennison should be reconveyed, there would have been some
difficulty in ascertaining what lands had been conveyed or pledged,
from the uncertainty where deeds might have been recorded, and
whether grants might not have been deposited without a conveyance;
but they have directed that those lands only shall be reconveyed,
which had been conveyed or pledged as collateral security. No one
of these deeds exhibited on its face any mark of its being made as
a collateral security. The question whether a conveyance was
absolute or as a security only was a material question which ought
to have been decided by the arbitrators. They have not decided
Page 18 U. S. 409
it, but have left it open to be decided by the parties
themselves or by some other tribunal. This is a very important part
of the award, and with respect to this subject it is incomplete. It
is obviously as uncertain now as it was before the award was made
what lands had been conveyed or pledged to Gideon Dennison as
collateral security. This part of the award, then, is void, and the
question is whether that part which directs the payment of money be
void also.
That an award may be void in part and good for the residue will
be readily admitted; but if that part which is void be so connected
with the rest as to affect the justice of the case between the
parties, the whole is void. There is great good sense in this
distinction. If A. be directed to pay B. $100, and also to do some
other act not well enough defined to be obligatory, there is no
reason why B. should not have his $100, because he cannot also get
that other thing which was intended for him. But if A. be directed
to pay B. $100, and B. to do something for the benefit of A., which
is not so defined as to enable A. to obtain it, there is much
reason why A. should not pay the $100, since he cannot obtain that
which the arbitrators as much intended he should receive, as that
he should pay the sum awarded against him.
The cause in 2 Saunders 292 is in point. In that case the
arbitrators awarded that William Pope
Page 18 U. S. 410
should be satisfied and paid by John Brett, the money due and
payable to the said William Pope, as well for task work as for day
work, and then the said William should pay to the said John the sum
of �25 lawful money of England. Mutual releases were also
awarded.
It was admitted that so much of the award as directed payment to
be made for task work and day work was void for uncertainty
inasmuch as the arbitrator had not ascertained how much was to be
paid on those accounts, but it was contended that the award was
good for the residue, inasmuch as enough remained to make it
mutual. But the court said
"that if the clause of task work and day work be void, as it is
admitted to be, the whole award is void, for it appears that
William Pope was awarded to pay the �25, and to give a
general release, upon a supposition by the arbitrator, that he
should be paid the task work and day work by virtue of that award;
and that not being so, it was not the intention of the arbitrators,
as appears by the award itself, that he should pay the money and
give a general release and yet receive nothing for the task work
and day work, as by reason of the uncertainty of the award in that
part he could not."
The application of this case to that under consideration is
complete. The award to reconvey all lands heretofore conveyed or
pledged to the plaintiffs by Gideon Dennison, in his lifetime, as
collateral security, is as uncertain as the award to pay for task
work and day work already performed; it was as much
Page 18 U. S. 411
the intention of the arbitrators that the parts of their award
which were favorable to the different parties should be dependent
on each other in this case, as in the case of
Pope v.
Brett. The arbitrators never could have designed that Bond and
Lyle should get their money, and retain their deposits.
In his note upon this case, Sergeant Williams says
"If by the nullity of the award in any part, one of the parties
cannot have the advantage intended him as a recompense or
consideration, for that which he is to do to the other, the award
is void in the whole."
This just principle must always remain a part of the law of
awards.
The objection to the part of the award which has been considered
applies equally to that part of it which respects bonds, notes,
bills, or other securities.
Judgment affirmed.
