Opinion
10-08-1873
FORRER v. COFFMAN & al.
Woodson, for the appellant. Yancey & Johnston, for the appellees.
1. Arbitrators are required to return their award by a certain day under their hands and seals. They prepare their award; and the day before they are required to return it, one of them hands it to the counsel of the plaintiff. He sees that they have omitted the seals, and he returns it to them, and requests that they will add the seals and insert the word " seal" in the body of the instrument. This they do, and then deliver it on the day to which they are limited by the submission. The award is valid.
2. The submission is made of matters in controversy in a suit by M against F & C, late partners, on a claim against the partnership. F alone is the party to the submission, and binds himself to perform it, and the award is that F shall pay to M, & c. The fact that C is not named in the award is no objection to it. He is not bound by it, having been no party to the submission.
3. The submission providing that the award shall be entered as the judgment of the court, when so entered it is the judgment in the cause, and settles all the matters involved in the action; and it was not necessary that the award on its face should dispose of the action.
4. The arbitrators might properly allow interest upon the ascertained present value of rents to become due.
5. It not appearing in the record whether the term of the county court at which the award was entered as the judgment of the court, was a quarterly or monthly term, it must be presumed by the appellate court, that it was a term at which the court had jurisdiction to enter the judgment.
In June 1871, Magdaline M'D. Coffman instituted an action of assumpsit in the County court of Rockingham, against Henry Forrer and Charles T. Clippinger, late partners under the name and style of Forrer & Clippinger, to recover from them the sum of nine hundred and fifty dollars, with interest, for the rent of a store room and lot in the town of Harrisonburg, due one half on the 12th of November 1870, and the other half on the 12th of May 1871. The process was served on both the defendants, and they appeared and pleaded " non assumpsit. "
In January 1872, the cause being still pending in the county court, Henry Forrer and Mrs. Coffman entered into a written agreement, by which, after reciting that certain questions and disputes between Mrs. Coffman and Forrer & Clippinger have arisen and are now pending, in regard to the liability of the said firm of Forrer & Clippinger to the said Coffman for rent due and to become due, under an article of agreement entered into by them on the 13th of January 1868, in regard to the lease of certain property in the town of Harrisonburg, which said property was burned on the 25th of December 1870; and the said Henry Forrer having agreed, and hereby agreeing, to assume and pay any liability that may attach to the said firm of Forrer & Clippinger by virtue of said article of agreement, and desiring to surrender the said lease, and pay over to said M. M'D. Coffman, in cash, the amount, if any thing, that may be due her upon the award to be made by the arbitrators hereinafter mentioned; therefore for the final ending all said questions and disputes, and deciding the same, the said Forrer and Coffman agreed that the matters in controversy should be referred to the final award of Samuel Shacklett, J. Madison Irvin and W. C. Harrison, or any two of them, so as that they should make their award in writing under their hands and seals, ready to be delivered by the 25th of May 1872. And it was agreed that this submission should be entered on record in the county court of Rockingham, and that the award should be entered up as the judgment of said court.
The arbitrators made their award, by which they awarded that Forrer should pay to Mrs. Coffman the sum of $2,817.73, with interest on $356,26, a part thereof, from the 12th of May 1671; on $475, another part thereof, from the 12th of November 1871, and on $1,986.47, the residue thereof, from the 12th of May 1872; and further that Forrer should deliver to said Coffman, immediate possession of the lot of ground mentioned in the submission.
At the June term of the county court of Rockingham, on the motion of Mrs. Coffman, a rule was awarded upon Forrer to show cause why the award aforesaid should not be entered up as the judgment of the court. This rule was served on Forrer, who appeared; and the motion came on to be heard at the July term of the court; when the court rendered a judgment in favor of Mrs. Coffman against Forrer, in pursuance of the terms of the award. And Forrer excepted.
By the agreement of the 13th of January 1868, Mrs. Coffman rented to Forrer & Clippinger, for the term of five years commencing on the 12th of May 1870, and ending on the 11th day of May 1875, a store room and its appurtenances, and also all the rest of the lower story of the main building of said house, except, & c.; in consideration for which they agreed to pay to her an annual rent of nine hundred and fifty dollars, to be paid at the end of each successive six months of said lease; and they further bound themselves to make extensive specified improvements on the house at their costs. On the 25th of December 1870, the house was entirely consumed by fire, the lessees having paid the rent up to November 12th 1870
The parties not agreeing as to the liability of Forrer & Clippinger to pay the rent after the house was consumed, the suit was brought by Mrs. Coffman against them; and the agreement for a submission of their matters to award, and the award was made as hereinbefore stated. As to the award it appeared in evidence, that it was prepared by the arbitrators and handed to the counsel of Mrs. Coffman by one of the arbitrators on the 24th of May 1872, in the absence of the others. When this was done, the word " seal" was not in the body of the instrument, and no seals were attached to their names; and on the next day the counsel returned it to the arbitrators with the request that they would affix seals to their names, and insert the words " and seals" in the body of the award; which was done by the arbitrators, who thereupon, all being present together, delivered the same to said counsel on the same day.
The defendant proved by one of the arbitrators, that they intended to allow the plaintiff the whole amount of rent accruing after the 25th of December 1870 down to the determination of the lease, reduced to cash on the 12th of May 1872, subject to a credit of $400 a year from the date of the award to the termination of the lease in May 1875; in like manner reduced to cash on the 12th of May 1872; which credit was for the value of the surrender of the lease by Forrer to the plaintiff.
And these being all the facts proved in the case, the defendant Forrer moved the court to set aside the award, and not to enter judgment upon it.
1st. Because the original award as made, signed and delivered, was not made under seal, as required by the submission.
2d. Because the award was not final, and did not dispose of a suit pending in the court, for part of the rent accrued after said 25th of December, 1870.
3d. Because of apparent errors on its face, in allowing interest from a period anterior to the time the rent was due or to become due under the lease.
4th. Because the rent accruing was reduced to cash by simple interest, instead of compound.
5th. Because it is impossible, in requiring the surrender of the lease of Forrer & Clippinger by Henry Forrer.
6th. Because the rule to show cause against the award issued in the action of assumpsit pending in the County court of Rockingham, for part of the rent, and because the court has no jurisdiction at a monthly term to enter the same.
7th. Because the award was unjust and excessive.
But the court overruled the motion to set aside the award; and as before stated, entered judgment thereon in favor of Mrs. Coffman against Forrer. And thereupon Forrer applied to the Circuit court of Rockingham for a writ of error and supersedeas to the judgment; which was refused: and he then made the like application to a judge of this court; which was allowed.
Woodson, for the appellant.
Yancey & Johnston, for the appellees.
OPINION
STAPLES, J.
An action of assumpsit was brought in the Circuit court of Rockingham county, by Mrs. Coffman, against Henry Forrer and Charles T. Clippinger, late partners, trading under the firm and style of Forrer & Clippinger. During the pendency of the action it was agreed between plaintiff and defendant Forrer, to submit the matters in controversy to arbitration, and the award pursuant thereto to be entered up as judgment of the court. The submission required the arbitrators to make their award under their hands and seals, ready to be delivered on or before the 17th of February 1872. The time was subsequently enlarged to the 25th of May following.
The award was made and completed on the 24th of May, and delivered by one of the arbitrators, in the absence of the others, to the counsel for the plaintiff. The counsel discovering that the award was not " under the seals" of the arbitrators, as required by the submission, returned it to them on the morning of the 25th, with a request they would supply the omission; which was accordingly done by the arbitrators, all of them being present; and thereupon, on the same day, the award was again delivered to the counsel.
It is insisted that the arbitrators were functus officio, and they were not authorized to change or interfere with the award after it was first delivered to counsel. The objection is of the most technical character. The additions made by the arbitrators were mere matters of form. They did not affect the merits or the substance of the award, or involve the exercise of any new and distinct act of judgment on the part of the arbitrators. It is impossible that either party could be prejudiced by the act. The omission was no doubt accidental, or the result of misapprehension; and the arbitrators had the right, as it was their duty, to supply any mere formal defect of the kind, certainly before the time fixed for the delivery of the award.
In Irvine v. Elnon, 8. East's R. 52, Lord Ellenborough said, that the arbitrator's authority having been once completely exercised, pursuant to the terms of submission, was at an end, and could not be revived even for the purpose of correcting a mistaken calculation of figures. But that view was placed upon the distinct ground, that such mistakes might involve the essential merits of the case. And the dstinction is well taken between acts which may change and correct the judgment of the arbitrator, and acts which involve mere matters of form; such as the simple insertion of date and the like. As to the latter, there is no valid reason why the arbitrator may not perform them even after a delivery of the award, more especially when the time has not expired, which terminates the arbitrator's authority. The tendency of the modern decisions is to disregard, as far as possible, mere matters of form, and to give force, conclusiveness and effect to awards where no corruption or misconduct on the part of the arbitrators is charged, and no fraud ordeceit imputed to the parties.
The second objection is, that Clippinger is not noticed in the award, although he is a party to the action, and one of the lessees of the property involved in the decision of the arbitrators. The answer is,, that Clippinger was in no way concerned in the submission, and cannot, therefore, be bound by the award. The defendant Forrer agreed to surrender the lease, to assume any liability which might attach to the firm, and to pay the plaintiff for the rent of the property such sum as should be ascertained by the arbitrators. The award may not be binding upon Clippinger, who was no party to the submission; but it is none the less valid as to Forrer, who did assent to it. As to him, the award is within the terms of the submission.
The third ground of error is the alleged failure of the arbitrators to dispose of the action of assumpsit, and of the several matters of controversy included in it. The submission provides that the award shall be entered up as the judgment of the court. When so entered, it necessarily terminated the action and all matters of controversy fairly connected with it. The award was in fact the judgment of the court, and as such ended the suit.
It is also insisted, that the arbitrators had no right to allow interest on the payments. The leased tenement had been destroyed by fire long before the period fixed for the termination of the lease. And the parties desired to ascertain the extent of the lessees liability for the rent due and to become due; and whatever it might be, the defendant agreed to pay immediately. The arbitrators accordingly ascertained the present value of the lease, and the amount to be paid the plaintiff in satisfaction of her claim; and the sums thus ascertained bear interest. It is clearly competent for the arbitrators to award the payment of interest upon the principal adjudged to be due. Even if they had made a mistake, it is not such a mistake on the face of the award as the court can correct.
The only remaining objection to be considered relates to the jurisdiction of the County court to enter judgment on the award at the July term 1872. It is insisted that this was a monthly term, and the court was not authorized at such term to take any action upon the award. It is unnecessary to consider whether the laws prescribing the jurisdiction of the County courts prohibits these courts at monthly terms, from entering up awards as the judgment of the court. By the act of July 11th, 1870, the judges of the County courts are empowered to designate four or more terms for the trial of civil cases, in which juries are required. Whether the July term of the County court of Rockingham was one of the courts thus designated, the record does not inform us. In the absence of all proof on the subject, we must presume that the court in this case did not assume an unwarranted jurisdiction.
For these reasons I am of opinion to affirm the judgment.
JUDGMENT AFFIRMED.