Karthaus v. Yllas y Ferrer
26 U.S. 222 (1828)

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U.S. Supreme Court

Karthaus v. Yllas y Ferrer, 26 U.S. 222 (1828)

Karthaus v. Yllas y Ferrer

26 U.S. 222

Syllabus

There is a class of cases upon awards to be found in the books in which arbitrators have been held to more than ordinary strictness in pursuing the terms of the submission and in awarding upon the several distinct matters submitted upon the ground of this submission's being conditional, ita quod. But the rule is to be understood with this qualification -- that in order to impeach an award made in pursuance of a conditional submission on the ground of part only of the matters in controversy having been decided, the party must distinctly show that there were other points in difference of which express notice was given to the arbitrators and that they neglected to determine them.

One partner, during the continuance of the partnership, cannot bind the other partner to a submission of the interests of both, to arbitration, but he might bind himself so as to submit his own interests to such decision.

It is a settled rule in the construction of awards that no intendment shall be indulged to overturn an award, but every intendment shall be allowed to uphold it.

If a submission be of all actions, real and personal, and the award be only of actions personal, the award is good, for it shall be presumed no actions real were depending between the parties.

When, upon a submission by one partner of all matters in controversy between the partnership and the person entering into the agreement of reference, an award was made directing the payment of money in an action on the bond to abide by the award, the breach assigned was that the partner who agreed to the reference did not pay, &c., this is a sufficient assignment of a breach, as he only who agreed to the reference was bound to pay.

On 16 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

Page 26 U. S. 223

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, fulfill, 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, fulfill, 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 McBlair, 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 $1,475 for a balance of the general account current between the parties, and also the sum of $1,398 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

Page 26 U. S. 224

proceeds are considered as becoming the property of said Yllas y Ferrer."

"Given under our hands and seals, in Baltimore, this 8 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.

Page 26 U. S. 225

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