An original writ has fulfilled its functions when the defendant
is brought into court. If lost, the court can provide, in its
discretion, for the filing of a copy.
The equity of the statute of Westminster 2, allowing bills of
exceptions, embraces all such judgments or opinions of the court
that arise in the course of a cause, which are the subjects of
revision by an appellate court, and which do not otherwise appear
on the record.
But to present a question to this Court, the subordinate
tribunal must ascertain the facts upon which the judgment or
opinion excepted to, is founded.
Therefore, where there was a reference in the circuit court, and
the bill of exceptions set out the objections to the award together
with the testimony of the arbitrator who was examined in open
court, and that testimony showed the facts upon which the
objections were founded, it was a sufficient exception.
If an arbitrator embraces in his award matter not submitted, and
includes the result in a single conclusion, so as to render it
impossible to separate the matters referred from those which have
not been, the award is bad.
But in this case, the averments in the declaration and
assignment of breaches in the covenant cover the ground upon which
the arbitrator rested his award, and his conclusion is a final
decision which this Court cannot revise either upon the allegation
of mistakes in law or mistakes in fact.
The case is stated in the opinion of the Court.
Page 59 U. S. 248
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This is an action by the defendant in this Court (Myers) against
the railroad company for the breach of the covenants in a contract
made between these parties in August, 1850, by which the defendant
agreed to perform certain work, incur charges and expenses, and
supply equipments and materials in the construction of a railroad
from the City of Portland, in Maine, to South Berwick, in New
Hampshire, and also to fulfill the unexecuted engagements of
certain contractors who had retired before completing their
contract. Before the terms of the contract had been accomplished,
the defendant was dismissed, as he alleges, without a sufficient
cause, and the object of the suit is to recover such damages as he
had sustained by the failure of the company to discharge the
obligations they had assumed to him. The declaration recites at
large the agreements of the parties, and contains a general
averment that he entered upon the construction of the railroad and
the performance of all the matters and things upon his part to be
done and performed, and had performed all the things required to be
done and performed, until the 19th of August, 1852, and had nearly
completed one of the sections of the road so as to be fit for use,
and that it had been used; also that he had expended large sums
towards the engineering, surveys, construction, and grading of
other parts of the road, until he was unlawfully dismissed, and
hindered, and forbidden to prosecute the work any further.
The declaration then contains a general averment of the
nonperformance by the plaintiffs railroad company of their
obligations to suffer the work to proceed, to abide the decision of
their engineer, or to pay the amounts that had become payable prior
to his dismissal.
This averment is material in connection with other parts of the
case, and will be extracted hereafter.
The defendant Myers proceeds to take up the various stipulations
of the railroad company, to describe their legal effect, and to
denounce their breach by the company. None of these are of
importance to the case here, save those that arise on the 8th and
9th articles of the contract. The first of these articles provides
for the payments to be made on account of the first division of the
road, and the other for those on the three remaining sections into
which it was divided. The 8th article provides that the corporation
should pay to the defendant for the performance of his
undertakings, and in full satisfaction of the obligations of the
company on the prior contracts, $32,000 per mile for the first
division of the work; that for all work done by the previous
contractors, to the 1st of August, 1850, payments should be made
according to their contracts, inclusive of the reserve
Page 59 U. S. 249
fund; for all lands purchased by them, whether for cash, bonds,
or stock, payments should be made in cash, bonds, or stock,
according to the mode of the purchase; and for all such work on
said first division, from the 1st of August, and as the same should
progress, current payment should be made at the rate of fifty
percent in cash, twenty-five percent in the six percent bonds of
the company, and twenty-five percent in stock; one-half of the
latter to be reserved for an indemnity for the fulfillment of the
contract until said division of the road should be completed.
The 9th section of the agreement refers to the second, third,
and fourth sections of the road. For the fulfillment of all its
obligations, the company agreed to pay $27,500 per mile --
thirty-three and one third percent in cash, on the return and
adjustment of each monthly estimate by the engineer, a like sum in
the bonds of the company, and a like sum, reserving one half
thereof for indemnity, in the stock certificates of the
"The monthly estimates to be governed by the same gradation of
actual expenditures as heretofore, and the payment to be made on
such estimate of actual expenditures."
And it was provided that upon the completion of either of the
second, third, or fourth sections in work, material, station
houses, and equipments, the whole of the payments of cash, bonds,
and certificates of stock, in corresponding amounts, equal to the
sum aforesaid, should be made in complete discharge of said company
upon all the contracts pertaining to that section of the road. The
breaches laid in the declaration, applicable to the payments, are
"And the said plaintiff in fact saith that the said defendants,
contrary to the covenants or agreements in the indenture aforesaid,
did not abide by the decision of their engineer as to the amount
and quantity of the several kinds of work done in and by said
indenture contracted to be done by said plaintiff for said
defendants, and which were done and performed by the plaintiff, nor
did said defendants pay said plaintiff for the work done by him for
them, according to said agreement, but, on the contrary, utterly
refused to pay the plaintiff therefor, according to the estimate of
their engineer, although the plaintiff avers that said engineer
made to said defendants a return of the monthly estimates of the
work and labor done by plaintiff upon said road."
The declaration recites the eighth article and avers a breach in
reference to the payments, as follows:
"And the plaintiff avers that said defendants, in breach of
their covenant aforesaid, did not, for all the work performed and
material furnished up to said first of August, make a full
settlement, as had been heretofore
Page 59 U. S. 250
estimated, monthly, and pay the plaintiff therefor, in
accordance with the covenants aforesaid; neither did said
defendants, for all work on said division, as the same progressed,
after said first of August, according to their covenants aforesaid,
pay therefor fifty percent in cash, twenty-five percent in bonds,
and twenty-five percent in stock, one-half being retained, as
stipulated, for an indemnity; nor did said defendants pay the
plaintiffs therefor, according to the monthly estimates of the
engineer as returned by him."
The breach of the covenants contained in the ninth article is
averred in language similar to the above, with variances
corresponding to the difference of the sums to be paid.
Before a trial, the parties agreed to refer the action to the
determination of three persons, to be appointed by the court, whose
report or the report of any two was to be made as soon as may be,
and that judgment thereon was to be final and execution to issue
Afterwards, one of the persons appointed was authorized to act
alone, and this person returned a decision in favor of the
defendant, Myers, for an ascertained sum as damages.
Upon the return of the award to the court, the corporation
submitted objections and examined the arbitrator in support of
them. These objections are as follows:
"1. That the said Hale has acted and awarded upon, and included
in said award, damages for a subject matter not referred to
"2. That the said Hale has included in his said award damages
for a claim not embraced in the plaintiff's writ and declaration,
and not sued for in the above action, and not referred to his
arbitration or decision."
"3. That in and by his said award he has awarded to the
plaintiff in said action damages for the nondelivery of the
reserved stock specified in said writ and declaration, and in the
contracts therein set out and copied, although the said reserved
stock is not sued for, nor is any allegation made in the said writ
and declaration that the same had been demanded, nor was any proof
of demand of the same offered at the hearing before said referee,
nor was any claim for the same referred for his arbitration or
"4. That the said Hale has awarded damages to the said
plaintiff, in lieu of profits for work not performed by the
plaintiff under his said contracts, contrary to law."
"5. That there having been no proof or claim that the
defendants, in fraud of the plaintiff's rights under his said
contract, had taken the contract from the plaintiff and given to
any other person at a lower rate, or taken it for the purpose of
giving it to
Page 59 U. S. 251
any other party at a lower rate, the referee has awarded a sum
as damages to the plaintiff for prospective profits not earned by
him, contrary to law."
"6. That it does not appear in and by said award whether the
said referee has credited or charged the plaintiff with an amount
of bonds deposited in the hands of Levi Morrell, under the terms of
the supplementary contract, dated February 6, 1851, and set out in
said writ and declaration."
"7. That it does not appear in and by said award what
disposition was made by the referee of an amount of bonds in the
hands of D. C. Emery, the treasurer of said corporation."
"8. That it does not appear in and by said award whether the
said referee charged the said plaintiff with an amount of bonds in
his hands, purporting to have been issued by one Nathaniel J.
Herrick, describing himself as treasurer pro tempore
The arbitrator testified that he had included the twelve and
one-half percent of reserved stock in the award, that he considered
the demand for reserved stock as suspended by the proceeding, and
that the plaintiff Myers was entitled to damages for not having
received the stock previous to the breach of the contract. He says
there was no distinct claim made before the referee for the
reserved stock but the account embraced it by way of debtor and
creditor. The books showed he was entitled to reserved stock, but
not as subject to his order, or that he had any opportunity to
receive it. He said it was admitted that that amount of reserved
stock would be due to him on settlement of his account, but not
that he had at any time had it under his control, nor was there any
evidence that he had demanded it.
This testimony, with more to the same effect, was elicited from
the arbitrator upon his examination before the circuit court upon
the return of the award and in support of the exceptions to it. The
learned judge who presided received the evidence but overruled the
exceptions and embodied the testimony and the decision in a bill of
exceptions, reserving his opinion of the regularity of that mode of
proceeding and whether the judgment can be revised. We are of the
opinion that the equity of the statute allowing a bill of
exceptions in courts of common law of original jurisdiction
embraces all such judgments or opinions of the court that arise in
the course of a cause, which are the subjects of revision by an
appellate court, and which do not otherwise appear on the record.
Strother v. Hutchinson,
4 Bing.N.C. 83; Ford v.
1 Halst. 388; Nesbitt v. Dallam,
7 G. & J.
494; 9 Port. 136.
But to present a question to this Court, the subordinate
Page 59 U. S. 252
must ascertain the facts upon which the judgment or opinion
excepted to is founded, for this Court cannot determine the weight
or effect of evidence nor decide mixed questions of law and fact.
4 How. 289.
The practice prevails in the courts, where rules of reference
are in use, to examine the arbitrators as witnesses, to ascertain
facts material to the validity of the award, and the appellate
courts are accustomed to revise their decisions, and upon principle
we see no objection to the introduction of the same practice into
the courts of the United States under the limitations we have
indicated. Thornton v.
7 Cranch 597; Butler v. Mayor of
7 Hill 329; Lutz v.
8 Pet. 166; Sawyer v. Freeman,
35 Me. 546; Ward v. American Bank,
7 Met. 486.
In the present instance, we can collect from the evidence of the
referee, as shown in the exceptions, the fact necessary to raise
some of the questions contained in the objections to the award
without being involved in the dispute between the parties as to the
condition in which the reserved stock had been placed by the
The law is well settled that by the reference of an action to
the determination of an arbitrator, nothing is included in the
submission but the subject matter involved in it. Tidd's Pr. 822; 2
And if an arbitrator embraces in his award matter not submitted,
and includes the result in a single conclusion so as to render it
impossible to separate the matters referred from those which have
not been, the award is bad. Lyle v.
5 Wheat. 394; 33 Me. 219; Sawyer v.
35 Me. 546.
The defendant contends that no claim for the reserved stock or
for damages for its nondelivery was embraced in the declaration or
sued for in the action, and as the reference was one of the action
merely, no such claim was submitted to the referee. This involves
the construction of the declaration.
We have extracted the averments in the declaration that were
designed to charge the corporation with the nonperformance of the
covenants for the payment for work done before the dismissal of the
In one of those, the charge is that the corporation had
neglected and refused to make any payments, and thus a total
failure to fulfill its obligations in respect to payments is
alleged. The assignments of the breaches of the 8th and 9th
articles are made in the language of the covenants themselves, and
the failure charged is coextensive with the obligations. If the
corporation had created no reserved stock, or had made no
Page 59 U. S. 253
for the contractor according to the monthly estimates as the
work progressed, and had finally dismissed him so as to exclude his
claim for the stock reserved when his contract had been fulfilled,
there could have been no ground for affirming that a breach of the
covenants had not been made by the corporation, and that damages
were not due.
There would have been no argument to support the allegation that
the contractor was a corporator to the extent of the stock which
should have been reserved. But as we interpret the declaration, its
averments have this scope and operation.
It was the duty of the arbitrator to ascertain the truth of
these charges. They were the precise subject of the reference. The
arbitrator has explained with clearness in his testimony his
conclusion on the subject of this stock, that the contractor had no
title to the shares; that is that he had not been paid by the
appropriation of so much reserved stock for his use. This
conclusion of his is a final decision on the question, for this
Court cannot revise his mistakes, either of law or of fact, if such
had been established. Burcheel v.
17 How. 344; Kleine v. Catara,
Gall. 61. The objections, we have noticed, include all that were
insisted on in the argument.
The objection taken to the absence of an original writ or to the
supply of a copy is not tenable. The original writ had fulfilled
its function when the defendant had been brought into court, and
its loss did not affect the action of the plaintiff, and it was a
matter resting in the discretion of the court, upon ascertaining
the defective state of the record, to supply the deficiency.
Our conclusion is there is no error in the record.
MR. JUSTICE DANIEL dissented.