In the Circuit Court of the County of Washington, Linthicum
instituted an action of covenant on articles of agreement by which
Lutz covenanted that Linthicum should have peaceable possession of
a certain house in Georgetown, and retain and keep the same for
five years. Linthicum was evicted by Lutz before the time expired.
The articles were spread upon record, by which it appeared, that
they were made "by and between John Lutz, of, &c., and agent
for John McPherson of Fredericktown in the State of Maryland of the
one part and Otho M. Linthicum of Georgetown, &c., of the other
part," and it is witnessed, "that the said John Lutz ,agent as
aforesaid, has rented and leased," &c., the premises to
Linthicum, and on the other hand Linthicum covenants to pay the
rent, &c.,
as stated in the declaration. There was no covenant in the lease
by Lutz for quiet enjoyment as stated in the declaration, but the
latter was founded upon
the covenant implied by law in case of demises. The articles
concluded with these words:
"In witness whereof, we, the said John Lutz and O. M. Linthicum,
have hereunto interchangeably set our hands and seals, day and date
above. "
John Lutz agent for John M. Pherson [L.S.] O. M. Linthicum
[L.S.].
The defendant Lutz pleaded performance without praying oyez, and
issue was joined. Afterwards, the parties, by consent, agreed to
refer the cause, and accordingly, by a rule of court it was
ordered
"That William S. Nicholls and Francis Dodge be appointed
referees between the parties aforesaid, with liberty to choose a
third person, and that they or any two of them, when the whole
matter concerning the premises between the parties aforesaid in
variance, being fairly adjusted, have their award in writing under
their hands, and return the same to the court here, and judgment of
the court to be rendered according to such award, and be final
between the said parties."
The referees so named, on 28 January, 1833, chose John Kurtz the
third referee, and afterwards, on the same day, made their award in
the following words:
"We, the subscribers, appointed arbitrators to settle a dispute
between Otho M. Linthicum and John Lutz in which the executors of
the late John McPherson of Frederick are interested, do award the
sum of $1,129.93, to be paid to the said Linthicum in full for all
expenses and damages sustained by him in consequence of not leaving
him in quiet possession of the house at the corner of Bridge and
High Streets, in Georgetown (the demised premises) for the full
term of the lease for five years. Any arrear of rent due from
Linthicum, to be paid by him."
Signed by all the referees. Judgment was given by the circuit
court for the full amount of the award so made and costs.
The articles purport to be made by Lutz and to be sealed by him,
and not to be made and sealed by his principal. The description of
himself as agent does not under such circumstances exclude his
personal responsibility. But this very liability was necessarily
submitted to the referees, and came within the scope of their
award.
Page 33 U. S. 166
It was objected to the award that it was uncertain, not mutual
and final; that it does not state whether the money is to be paid
by Lutz or the executors of McPherson; that it does not find the
arrears of rent due, and to whom due: that it does not appear to be
an award in the cause; that the award and the proceedings thereon
are not according to the laws of Maryland; that the appointment of
the third referee ought not to have been made until after the other
two referees had met and heard the cause and disagreed thereon. The
court held all these objections invalid.
Without question, due notice should be given to the parties of
the time and place for hearing the cause by the referees, and if
the award was made without such notice, it ought, upon the plainest
principles of justice, to be set aside. But it is by no means
necessary that it should appear upon the face of the award that
such notice was given. There is no statute of Maryland, whose laws
govern in this part of the district, which requires such facts to
be set forth in the award. If no notice is in fact given, and no
due hearing had, the proper mode is to bring such facts, not
appearing, on the face of the award, before the court upon
affidavit and motion to set aside the award. But
prima
facie, the award is to be taken to have been regularly made
where there is nothing on its face to impeach it.
The statute of Maryland requires that notice of an award shall
be given to the party against whom it is made by service of a copy
three days before judgment is moved, and judgment is not to be
entered but on motion and direction of the court. It was alleged
that a copy of the award was not delivered.
By the Court:
"How that may have been we have no means of knowing, for nothing
appears upon the record respecting it, and there is no ground to
say that it ought to constitute any part of the record or that it
is properly assignable as error. It is a matter purely collateral
and
in pais. If no such copy had been delivered, the
proper remedy would have been to take the objection in the court
below upon the motion for judgment, or to set aside the judgment
for irregularity if there had been no waiver or no opportunity to
make the objections before judgment. But in the present case,
sufficient does appear upon the record to show that the party had
full opportunity to avail himself of all his legal rights in the
court below. The cause was referred at November term, 1832, pending
the term, to-wit, on 18 January, 1833, the award was filed in
court; the cause was then continued until the next term,
viz., the fourth Monday in March, 1833, at which time the
parties appeared by their attorneys, and upon motion and after
argument of counsel, judgment was entered. We are bound to presume,
in the absence of all evidence to the contrary, that all things
were rightfully and regularly done by the court and that the
parties were fully heard upon all the matters properly in
judgment."
In the circuit court, Otho M. Linthicum, the defendant in error,
instituted an action of covenant on a certain lease or article of
agreement by which the defendant, John Lutz, demised to him a
certain brick house in Georgetown for a term of five years at a
rent specified in the same. Under this lease,
Page 33 U. S. 167
the plaintiff, Linthicum, held possession of the premises
according to the covenants in the said lease and made certain
repairs. The declaration avers that before the end of the term for
which the premises were so leased to the said Linthicum, the
defendant, John Lutz, evicted and dispossessed him from the
premises, whereby he lost the benefit of the repairs done to the
same, and claims damages for the breach of the covenants in the
lease and for eviction, amounting to $2,000.
The lease upon which the action was instituted was in the
following terms:
"Articles of agreement made and concluded this 22 October in the
year of our Lord 1828 by and between John Lutz, of Georgetown, in
the District of Columbia, and agent for John McPherson, of
Fredericktown, in the State of Maryland, of the one part, and Otho
M. Linthicum, of Georgetown, and district aforesaid, of the other
part, witnesseth that the said John Lutz, agent as aforesaid, has
rented or leased to the said O. M. Linthicum all that brick house,
with the appurtenances thereto belonging, situated on the corner of
High and Bridge Streets in Georgetown aforesaid, with the alley
thereto attached, of thirteen feet six inches, fronting on Bridge
Street and running parallel with said house, now in possession and
occupied by Jacob Carter, Jr., as a dry goods store, to have and to
hold said house, and receive peaceable possession on 3 May next
ensuing and continue for the space of five years from said time,
which will terminate on 3 May, 1834. And the said O. M. Linthicum,
on his part, doth hereby covenant and agree for himself, his heirs
and assigns to pay to the said John Lutz, agent as aforesaid, or
his successor the just and full sum of $250 for each and every year
for the aforesaid term of five years, the rent to be paid half
yearly as the same may become due, and all repairs that may be done
by the said O. M. Linthicum for his own convenience to be at his
own expense, and any repairs done by him to be left on the premises
as relates to the house; but in case he should erect a warehouse on
the vacant ground, shall have the privilege to remove the same at
his will and pleasure within said time and to leave the house in as
good condition at the end of said term as when he gets possession,
the usual wear and tear excepted. "
Page 33 U. S. 168
"In witness whereof we, the said John Lutz and O. M. Linthicum,
have hereunto interchangeably set our hands and seals, day and date
above. JOHN LUTZ, Agent for J. McPherson [L.S.]. O. M. LINTHICUM
[L.S.]."
"Signed, sealed and delivered in presence of James Gettys, John
White."
The defendant, John Lutz, pleaded performance, and afterwards
the following agreement of reference was entered into by the
counsel for the parties in the case. The record contains the
following entries relative to the further proceedings in the
case.
"Whereupon it is ruled by the court here that the said William
S. Nicholls and Francis Dodge, gentlemen, be appointed referees
between the parties aforesaid, with liberty to choose a third
person, and that they or any two of them, when the whole matter
concerning the premises between the parties aforesaid in variance
being fairly adjusted, have their award in writing, under their
hands, and return the same to the court here, and judgment of the
court to be rendered according to such award and be final between
the said parties, and afterwards, to-wit on 28 January, 1833, the
said William S. Nicholls and Francis Dodge file in court here the
following certificate appointing John Kurtz, with themselves, the
referees in the premises, to-wit: "
"We certify that, pursuant to the terms of reference, in the
case of Otho M. Linthicum v. John Lutz, and before proceeding to
act therein or make any award, we, the referees, did nominate and
appoint John Kurtz, whose name is subscribed to the within award,
the third referee to act, together with ourselves, in deciding the
controversy between the parties, and submitted to us. W. S.
NICHOLLS. FRANCIS DODGE."
"And on the same day, the referees file in court here their
award in manner and form following, to-wit: "
"We, the subscribers, appointed arbitrators to settle a dispute
between Otho M. Linthicum and John Lutz, in which the executors of
the late John McPherson, of Frederick, are interested, do award the
sum of $1,129.93 to be paid to the said Linthicum in full for all
expenses and damages sustained by him in consequence
Page 33 U. S. 169
of not leaving him in quiet possession of the house at the
corner of Bridge and High Streets, Georgetown, for the full term of
the lease for five years -- any arrear of rent due from Linthicum
to be paid by him. W. S. NICHOLLS. J. KURTZ. FRANCIS DODGE."
The circuit court gave judgment for the plaintiff on the award,
and the defendant prosecuted this writ of error.
Page 33 U. S. 175
MR. JUSTICE STORY delivered the opinion of the Court.
The original suit was an action of covenant, brought by
Linthicum against Lutz upon certain articles of agreement made
between Lutz on the one part and Linthicum on the other part on 22
October, 1828. The declaration, after reciting that Lutz, by these
articles, leased certain premises in Georgetown to Linthicum for
five years from 3 May then next ensuing, and a covenant on the part
of Linthicum to pay therefor an annual rent of $250, the rent to be
paid half-yearly, averred that, by the articles of agreement, Lutz
bound himself to Linthicum that the latter should have peaceable
possession of the premises and retain and keep the same for the
said five years; that Linthicum entered into possession of the
premises and held the same until 3 November, 1832, when Lutz
evicted and dispossessed him, &c. The articles are spread upon
the record, by which it appears, that they were made
"by and between John Lutz of, &c., and agent for John
McPherson of Fredericktown in the State of Maryland, of the one
part, and Otho M. Linthicum of Georgetown, &c., of the other
part."
And it is witnessed, "that the said John Lutz agent, as
aforesaid,
Page 33 U. S. 176
has rented and leased, &c.," the premises to Linthicum, and
on the other hand, Linthicum covenants to pay the rent, &c., as
stated in the declaration. But there is no covenant in the lease by
Lutz for quiet enjoyment, as stated in the declaration; but the
latter is founded upon the covenant implied by law, in cases of
demises. The articles conclude with these words.
"In witness whereof, we, the said John Lutz and O. M. Linthicum,
have hereunto interchangeably set our hands and seals, day and date
above. John Lutz, agent for John McPherson [L.S.]. O. M. Linthicum
[L.S.]."
The defendant, Lutz, without praying oyer of the articles
(without which they could not constitute a part of the
declaration), pleaded general performance of the covenants, upon
which an issue was joined to the country. Afterwards, the parties,
by consent, agreed to refer the cause, and accordingly, by a rule
of court, it was ordered
"That William S. Nicholls and Francis Dodge be appointed
referees between the parties aforesaid, with liberty to choose a
third person, and that they, or any two of them, when the whole
matter concerning the premises between the parties aforesaid in
variance being fairly adjusted, have their award in writing under
their hands, and return the same to the court here, and judgment of
the court to be rendered according to such award and be final
between the said parties."
The referees so named, on 28 January, 1833, chose John Kurtz the
third referee, and afterwards, on the same day, made their award in
the following words.
"We, the subscribers, appointed arbitrators to settle a dispute
between Otho M. Linthicum and John Lutz, in which the executors of
the late John McPherson of Frederick are interested, do award the
sum of $1,129.93, to be paid to the said Linthicum in full for all
expenses and damages sustained by him in consequence of not leaving
him in quiet possession of the house at the corner of Bridge and
High Streets in Georgetown (the demised premises) for the full term
of the lease for five years. Any arrear of rent due from Linthicum
to be paid by him."
Signed by all the referees. Judgment was given by the circuit
court for the full amount of the award so made and costs, and the
present writ of error is brought to revise that judgment.
Page 33 U. S. 177
The question whether the articles of agreement personally bound
Lutz is not presented by the pleading in such a manner as that
there might not be difficulty in deciding it if it constituted the
only point in judgment. But if this difficulty were surmounted and
the articles are to be deemed properly before us, we do not see how
they can well be construed not to import a personal liability on
the part of Lutz for the want of any obligations contained in them.
The articles purport to be made by Lutz and to be sealed by him,
and not to be made and sealed by his principal. The description of
himself as agent does not, under such circumstances, exclude his
personal responsibility. But this very liability was necessarily
submitted to the referees and came within the scope of their
award.
Several objections have been taken to the award. In the first
place, it is said that the award is uncertain and not mutual and
final; that it does not state by whom the money awarded is to be
paid, whether by Lutz, or by the executors of McPherson; and that
it does not find the arrears of the rent due, and to whom due; and
that it does not appear to be an award made in this cause. We are
of opinion that these objections are ill founded. The award is
sufficiently shown to be an award in this cause, for no other cause
directly appears to have been pending or in dispute between the
parties, and the subject matter of this very suit is directly
within the terms of the award. The award being made in this suit,
and applicable in its terms to it, it is sufficiently certain that
the money is to be paid by Lutz, for there is no other person on
the record to whom it can be judicially awarded to be paid. The
award is also mutual and final as to all the matters referred. It
is not a general arbitration at the common law, of all matters in
dispute between the parties, but a specific reference of the
matters in dispute in the cause pending in court, under a rule of
court. Now those matters were the damages and losses claimed by
Linthicum, for the breach of the covenant, and the sum awarded is
expressly declared to be "in full, for all expenses and damages" so
sustained. As to the arrears of the rent due from Linthicum, they
constituted no part of the matters submitted. They were not in
controversy in the suit. And the statement in the award as to any
arrears of rent was
Page 33 U. S. 178
merely an exclusion of a conclusion which might possibly have
been drawn that the referees had deducted such arrears in making
their award. It is therefore very properly stated that any arrears
of rent due by Linthicum are, notwithstanding the award, to be paid
by him.
Another objection is that the submission, the appointment of the
third referee, the award itself, and the proceedings thereon have
not been according to the acts of assembly of Maryland and to the
order of the court. It is said that the appointment of the third
referee ought not to have been made until after the two other
referees had met and heard the cause and disagreed thereon, but we
are of a different opinion. The submission under the rule of court
did not contemplate the third referee to be a mere umpire in the
case upon a difference of opinion of the other two, but an original
referee, to be chosen by the other two, and when chosen to
constitute a part of the board authorized to hear and decide the
cause. How otherwise are we to understand the language of the rule?
"They [that is, the three] or any two of them are to have their
award in writing," &c., which words plainly contemplate the
case of a hearing by all of them, and if the case were one in which
an umpire was to be chosen, there is no impropriety, and on the
contrary it has been thought that there is great propriety, in
selecting the umpire before the other arbitrators have disagreed.
This doctrine has been repeatedly held in England,
* and it was
affirmed in the Court of Appeals of Maryland in
Rigden v.
Martin, 6 Harris & John. 403. It is so reasonable in
itself that if the point were new, it would be difficult to
displace it.
Then again it is said that no notice appears to have been given
to Lutz of the appointment of the third referee or of the making or
returning the award, and that these acts appear all to have been
done on the same day. There is certainly no objection to these
acts' being done on the same day, if the parties had due notice and
a due hearing before the referees and the award was made upon due
deliberation. Without question, due notice should be given to the
parties of
Page 33 U. S. 179
the time and place for hearing the cause, and if the award was
made without such notice, it ought, upon the plainest principles of
justice, to be set aside. But it is by no means necessary that it
should appear upon the face of the award that such notice was
given. There is no statute of Maryland (whose laws govern in this
part of the district) which requires such facts to be set forth in
the award. The Act of 1779, ch. 21, sec. 8, merely authorizes
submissions by a rule of court of causes pending in the court, and
the act of 1785, ch. 80, sec. 11, provides only for cases where
either of the parties dies pending the submission, and before the
award. If no notice is in fact given and no due hearing had, the
proper mode is to bring such facts (not appearing on the face of
the award) before the court upon affidavit and motion to set aside
the award. But
prima facie the award is to be taken to
have been regularly made where there is nothing on its face to
impeach it. This very objection was made and overruled in
Rigden v. Martin, 6 Harr. & Johns. 403.
Another objection is that the same Act of Maryland of 1785, ch.
80, sec. 11, requires that in all cases of awards made under a rule
of court, the party in whose favor the award is made shall cause a
copy thereof to be delivered to the adverse party or his attorney
at least three days before judgment is moved for upon the award,
and the clerk of the court is not to enter judgment upon any award
without a motion to and direction from the court, and the court
shall always have satisfactory proof that a copy of the award hath
been so delivered before judgment shall be so directed to be
entered, and it is said that there has not been a compliance with
this requisite by a delivery of the copy. How that may have been we
have no means of knowing, for nothing appears upon the record
respecting it, and there is no ground to say that it ought to
constitute any part of the record or that it is properly assignable
as error. It is matter purely collateral and
in pais. If
no such copy had been delivered, the proper remedy would have been
to take the objection in the court below upon the motion for
judgment or to set aside the judgment for irregularity if there had
been no waiver or no opportunity to make the objections before
judgment. But in the present case, sufficient does appear upon the
record to show that the party had full opportunity
Page 33 U. S. 180
to avail himself of all his legal rights in the court below. The
cause was referred at November term, 1832; pending the term, to-wit
on 18 January, 1833, the award was filed in court; the cause was
then continued until the next term,
viz., the fourth
Monday in March, 1833, at which time the parties appeared by their
attorneys, and upon motion, and after argument of counsel, judgment
was entered. We are bound to presume, in the absence of all
evidence to the contrary, that all things were rightfully and
regularly done by the court and that the parties were fully heard
upon all the matters properly in judgment.
Upon the whole, our opinion is that the judgment of the circuit
court ought to be
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court that the judgment of the said circuit court in this
cause be and the same is hereby affirmed with costs and damages at
the rate of six percentum per annum.
*
See Watson on Awards, ch. 4, sec. 2, 56 to 58; Kyd on
Awards 82 to 88, 2d edition;
Doe v. Doe, 2 Term 644;
Harding v. Watts, 15 East 556.
