Opinion
(June Term, 1837.)
A covenant to submit a matter of difference to arbitration, will bind a party to perform the award, although there is no express stipulation to that effect; and in an action upon the covenant, non-payment of the sum awarded may be assigned as a breach.
THE plaintiff had brought an action for slanderous words, against the defendant; and before the return of the writ, the parties agreed to refer the controversy to arbitrators; and a covenant was executed, in which it was stipulated, "to refer this cause" (the action for slander,) "to the arbitrament, award, and final determination of, c.; and which award when made in writing, and signed by the arbitrators, if made on or before the first day of January next, shall be made a rule of Lincoln Superior Court of law." There was no express stipulation that the parties should abide by and perform the award. On the 22nd of October following the date of the agreement, the arbitrators met, and by their award in writing, directed the defendant to pay the plaintiff two hundred dollars, and the costs of the action of slander. This action was brought upon the covenant, and the breach assigned was, that the defendant had not complied with, or abided by the final determination of the arbitrators, nor performed the award made by them. The defendant pleaded "covenants not broken," and "performance."
D. F. Caldwell and A. M. Burton, for the plaintiff.
J. W. Norwood, for the defendant.
On the trial before his Honor Judge DICK, at Lincoln, on the last Fall Circuit, the plaintiff offered to prove, that the defendant had refused either to permit judgment to be entered in the action of slander, for the sum awarded against him, (see the question upon the award in the action of slander reported in 3 Dev. Rep. 531,) or to pay that amount; but his Honor, being of opinion that the plaintiff could not recover, directed a verdict to be entered for the defendant; and the plaintiff appealed.
— In making up the case for this Court, the judge has not stated his reasons, why he thought the plaintiff could not recover. We, however, from the case stated, think the plaintiff was entitled to recover, if his evidence supported his allegations. Lupert v. Wilson, 11 Mod. 170, was an action of covenant brought on an agreement to refer all matters in difference to an arbitration. The arbitrators awarded five hundred pounds to be paid, and general release to be given. It was argued, that though no express words were in the covenant, that the defendant should perform the award, yet it should be good by implication. Lord HOLT said, that the very referring a thing to arbitration, is a mutual undertaking that each party shall perform his part of the award; for otherwise it cannot be said to be referred. In concluding his opinion he said, where two persons submit to an award, this amounts to mutual promises. In Purslow v. Bailey, 2 Lord Ray. Rep. 1040, Lord HOLT again said, the submission is an actual mutual promise to perform the award of the arbitrators; and in such actions, whilst he was a practiser, and since he had been a judge, the submission had been always held sufficient evidence to maintain the action. And if so, then it is within the same reason as when a submission is by bond, c. In the case before us, we think the agreement in the deed to submit, imported a covenant to perform the award; and that the defendant's refusal to perform, was a breach of the covenant. There must be a new trial.
PER CURIAM. Judgment reversed.