Karthaus v. Yllas

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 Ferrer, and Josef Antonio Yllas, for the ending and determining the disputes, differences, and controversies, aforesaid, and all actions, suits, claims, and demands whatsoever, concerning the 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 on 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 aforesaid arbitrators, made, of and concerning the premises, and of all disputes, differences, actions, suits, claims, and demands whatsoever, touching 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 be 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 from 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, 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 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 general 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 Barcelonese and 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 plaintiff 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 this 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. 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 plaintiff 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 every thing in the premises.

The submission being conditional, ita quod, the referees were bound to pursue, strictly, the submission in all its terms, and to award on all matters submitted to them. 2 Gallison's Rep. 778. Cokes' Rep. Bascoe's case, 193.1.Salk. 70. Kyd on Awards, 176.

2. An award must be so certain, that it may be pleaded in bar, to an action against the parties to it; which is not the fact in this case. 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 averments in the replication which will supply these deficiencies-there should have been an averment as to the members of the firm-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 error. 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 & Co., were the same persons. Cited, 1 ''Bacon's Abr. Arbit. and Award, pl. E.'' 1. 216. 1 ''Com. Dig.'' 666. ''Tit. Awd. pl. 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. 409. The award here is entirely for the 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 they were not, it was for the plaintiff below, only, to complain.

Mr. Justice TRIMBLE delivered the opinion of the Court.--