1. Where an award made under submission by parties plaintiff and
defendant to that effect, awards that one party shall pay to the
other a certain sum on one day specified, another sum on another
day specified, and that to secure the payments he shall give a bond
in a penal sum, and the party against whom the award is made
refuses to do any of the things awarded, an action of debt will lie
against him even although the time when both sums of money were
awarded to be paid has not yet arrived. The right of action is
perfect on the party's refusal to give the bond.
2. The power of arbitrators is exhausted when they have once
finally determined matters before them. Any second award is
void.
Bayne & Morris having differences with each other, agreed to
refer them to arbitrators, who besides being authorized to
determine the
amount to be paid, were authorized to award
upon what terms, as to time and security, the payment
should be made. On the 23d of January, 1858, the arbitrators made
an award, and on the 26th of the same month made
a second
one. Both were received in evidence on the trial below,
although the pleadings were framed solely with reference to the
last one. This adjudged that Morris should pay to Bayne one sum on
the 28th of July, 1858; a second sum on the 20th of January, 1859;
and a third sum on the 20th of January, 1860; and that to secure
the payment of these sums he should give to Bayne a
bond
with penalty and surety. No bond being given, Bayne, on the 28th of
January, 1858 --
that is to say, before any of the sums awarded
to be paid had fallen due -- sued Morris in an action of debt;
the declaration setting forth, that
"the defendant hath not given the said plaintiff the said bond
for the security of the payments aforesaid, although often thereto
requested; nor hath he paid the said money nor any part thereof,
but the same to pay hath refused; whereby an action hath accrued to
the said plaintiff to have
Page 68 U. S. 98
the said sums of money or satisfactory security for the payment
of the same, to the damage,"
&c.
The court below (the Circuit Court for the District of
Maryland), instructed the jury that if the suit was brought before
either of the sums of money became due, the plaintiff could not
recover, and the correctness of this ruling was the point, on
error, here.
No considerable objection was taken below to the validity of the
second award, that, to-wit, of 26th of January.
MR. JUSTICE DAVIS, after stating the case, delivered the opinion
of the Court:
The court did not pass on the validity of the award as it should
have done, but directed the jury to find against the plaintiff, on
the ground that the action was premature, neither of the sums
awarded to be paid being due when suit was brought.
It is clear that Bayne instituted his action because Morris
would not give the security he was required to by the award. And on
principle and authority, he had a right to sue when Morris refused
to perform any material part of the award. The parties to the
submission chose to say to the arbitrators, "If you order anything
to be paid, by one to the other, you must settle how the payment is
to be secured." The arbitrators did decide on the very point
submitted to them, and direct the kind of security to be given, and
on Morris' failure to give the bond as required he was in default,
and a cause of action accrued. He had no right to say to Bayne,
"Wait until the installments are due, and then I will elect whether
or not to keep the award." The provision for security was equally
valid as the order for the payment of money; and it may be nearly
as important. The right of action was as perfect, on Morris'
refusal to give the penal bond, as it would have been after the
credit allowed by the award had expired.
Where goods are sold on credit, and the purchaser agrees to give
his note for them, and refuses to do so, it has been held that an
action will lie before the credit expires, and that
Page 68 U. S. 99
the measure of damages is the price of the goods. [
Footnote 1] The court below, therefore, erred
in charging the jury that the right to sue was in abeyance until
the time limited by the award for the payment of the money had
expired.
Inasmuch as this case is to be remanded, it is proper to say,
that in the opinion of the court, the award of the 26th of January
is inoperative and void. Arbitrators exhaust their power when they
make a final determination on the matters submitted to them. They
have no power after having made an award to alter it; the authority
conferred on them is then at an end. [
Footnote 2]
Bayne can, if so advised, amend his pleadings and test the
correctness of the first award, which not being properly in the
case has not been considered by the court, and no opinion is
therefore given on the question of its validity.
Judgment reversed and venire awarded.
[
Footnote 1]
2 Parsons on Contracts 485-486;
Cort v. Ambergate Railway
Company, 6 English Law & Equity Reports 237;
Hanna v.
Mills, 21 Wendell 90;
Rinehart v. Olwine, 5 Watts
& Sergeant 157;
Mussen v. Price, 4 East 147;
Dutton v. Solomonson, 3 Bosanquet & Puller 582.
[
Footnote 2]
Russell on Arbitration 135.
