#### Armstrong v. Armstrongs.

November, 1829.

*Covenant*— Oyer *of Covenant*— When Variance Cannot Be Taken Advantage of.* — In covenant, defendant takes oyer of the covenant, and afterwards pleads covenants performed: Held, that defendant by oyer has made the covenant Itself a part of the record, and cannot at trial of the issue, object to the covenant as evidence, on the ground of variance between it and' the covenant set forth in the declaration.

Awards — Presumption in Favor of.† — All fair presumptions shall be made in favour of an award: and if on any fair presumption, the award may be brought within the submission, it shall be sustained.

This was an action of covenant brought by Archibald Armstrong against Richard and Archibald Armstrong, in the hustings court of Richmond. The declaration set forth a covenant between the plaintiff and the defendants, for submitting all matters in dispute between them, to O. Manson and E. A. Mayo, whose award the parties covenanted to ^submit to and abide ■ by; the actual arbitration of the matters in dispute; an award by the arbitrators, that the defendants should pay the plaintiff 127 dollars, subject to a deduction of 16 dollars, and half the costs of a suit, then pending in the name of Richard Armstrong; and notice to the defendants of-the award: and then the declaration alleged as a breach of the covenant, that the defendants had not paid the plaintiff the sum so awarded to him.

The defendants took ojrer of the covenant, the substantial part whereof was thus: “Whereas a certain dispute has taken place between the parties, in relation to killing a parcel of hogs, the parties, being desirous of settling the matter of difference between them, have chosen O. M. and E. A. M. to settle, arbitrate and determine all difference between them, and to fix the amount to be paid by either party; and in case they may not agree, then they shall call in a third person as umpire; and their award shall be binding between the parties.” And then the defendants pleaded, that the arbitrators “made no award of and concerning the *175premises in the covenant mentioned and to them referred.”

The plaintiff in his replication set forth the award in h<BC verba, and averred that the defendants had not paid the sum of money awarded to him. The award was in these words: “On settlement of accounts between Archibald Armstrong & Co. as per bond &c.” (describing the instrument of submission to arbitration) “it appears, that A. Armstrong junior” (one of the defendants) “is indebted to A. Armstrong senior, 127 dollars; that is to say, allowing A. A. junior all the lard taken or made by the said firm — and whereas Richard Armstrong” (the other defendant) “one of the parties to the said bond” (the submission) “has sued A. Armstrong senior, on his own account, now pending in the mayor’s court of Richmond, we hereby award, that 16 dollars, and one half the costs shall be deducted from the balance due A. A. senior above stated — and the balance shall be paid over to A. A. senior, by the above parties —and the said R. A. shall withdraw' his suit above mentioned.” *This award was signed by the two arbitrators ; and then signed and sealed by all the parties to the submission, and to this act of the parties both the arbitrators were attesting witnesses; but the fact of the parties having signed the award, was not specifically pleaded or relied on in the replication.

To this replication the defendants demurred generally. The court overruled the demurrer. And then the defendants were allowed to put in the plea of covenants performed, on which an issue was made up.

At the trial, the defendants objected to the admission of the arbitration bond in evidence, on the ground of variance between the instrument itself and the covenant described in the declaration. But the court overruled the objection; and the defendant excepted.

There was a verdict and judgment for the plaintiff for 109 dollars with interest &c. The defendant appealed to the circuit court of Henrico; which held that the replication to the first plea of No award, was not sufficient in law to maintain the action ; and therefore reversed the judgment. And then the plaintiff appealed to this court.

Lyons, for the appellant,

said, that there was, in truth, no variance between the covenant as set out in the declaration, and the instrument of submission offered in evidence; for, though the covenant recites, that the dispute in relation to killing a parcel of hogs was the cause or motive of the reference, yet the arbitrators are appointed to determine all difference between the parties. But if there was a variance, it was an immaterial one. Wroe v. Washington, 1 Wash. 357; M’Williams v. Willis, Id. 199; Peter v. Cocke, Id. 257; Hammitt v. Bullett’s ex’ors, 1 Call 567. Or, at any rate, after oyer prayed by the defendants the covenant was made part of the record, and after in reference to that very covenant they had pleaded that there was no award made in pursuance of the same, they cannot object to the paper as evidence: they cured the defect of the declaration, if *any there was: they made the deed itself a part of the declaration. 1 Chitt. Plead. 644; Macon v. Crump, 1 Call 575. Surely, the court could not exclude a paper which was already part of the record. On this point, then, there was no error in the judgment of the hustings court.

Was this a good award? There are three requisites to a good award: that it be mutual, that it be certain, that it be within the submission. As to mutuality, properly understood, he said, there was no want of it in this award; and if there was, the old doctrine on this point may be regarded as exploded; Kyd on Awards, 147, 153; 1 Com. Dig. Arbitrament, Award, E. 14, p. 672, and the notes; Horrel v. M’Alexander, 3 Rand. 94. That this award was not certain enough could hardly be pretended. Then, was it within the submission? The court will not presume that an award is without the terms of the submission; it must clearly appear to be so; all presumptions are to be made in favor of the award. What is conclusive of this point, is, that the parties to the submission have signed and sealed the aw'ard, and therebj7 shewn that it was within the submission as they themselves understood and intended it. But the point of the objection was, that the arbitrators awarded the 16 dollars due from A. A. senior to R. A. to be discounted from the debt due by A. A. junior *&*Co. to A. A. senior, and that R. A. should pay A. A.’s separate debt. Now, admit that, in this particular, the arbitrators went beyond the submission, and that the award was so far bad; it was still good in other respects as to which it was within the submission. 1 Com. Dig. Arbitrament, E. 8, p. 668; 2 Wms. Saund. 293, note 1; Richards v. Brockenbrough’s adm’r, 1 Rand. 449. And, on the plea of No award, the defendant was bound to shew, that the award was wholly bad; for if there was an award in fact, and that good in part, the plea was falsified. 1 Chitt. Plead. 545. But, in truth, the arbitrators were right in awarding that R. A. as well as A. A. should pay the debt; for if he was not originally bound as principal or as surety, he was bound by the very terms of *the submission bond, as a surety at least; and then the case of Richards v. Brockenbrough sustains the award.

J. S. Myers, for the appellee,

premising that the plea of no award, in effect, denied that there was a good award, objected, 1. that this award was neither mutual nor final; and 2. that it was not within the terms of the submission. As to the mutuality requisite in awards, so much of that doctrine as was merely technical had indeed been exploded; but not the doctrine itself: the modern cases had only explained it, and made it reasonable. In this controversy between A. A. of the one part, and R. and A. A. (who were joint parties) of the other part, the arbitrators ascertained what one of these joint parties owed to A. A. and what A. A. owed to the other of them. How could the money so awarded satisfy A. A.’s demands against R. and A. A. jointly, or satisfy R. and A. A.’s joint demands against A. A.? But he relied chiefly on the second objection, that the award was not within the submission. He *176thought it impossible to doubt, that the only matter of difference referred to the arbitrators, was that which grew out of the contract about the killing of the hogs; the recital explaining the general words used in the sequel. Com. Dig. Obligation, p. 194; Hassell & al. v. Long’s ex’ors, 2 Man. & Selw. 363. And, most certainly, the submission was only of matters in difference between the plaintiff and the defendants jointly, not the defendants severally, or either of them. Now, the award does not ascertain what the defendants jointly owed the plaintiff, or that they owed him any thing; it does not ascertain what the plaintiff owed the defendants jointly, or that he owed them any thing. It ascertains, that one of the defendants owed the plaintiff 127 dollars, and that he owed the other defendant 16 dollars; and then, it not only applied this monejr due to R. A. alone to the satisfaction in part of the joint debt of R. and A. A. but it directed that R. and A. A. jointly, should pay the plaintiff the debt which A. A. alone owed him. Therefore, the departure from the submission, *was entire and obvious. He said, the court could only judge bj' the submission and award themselves, taken alone; the question being presented by a demurrer to the replication, nothingcould.be intended but what was averred in the replication. It appeared, indeed, that the parties put their signatures to the award; but this only appeared by the award being set forth in hasc verba; and those signatures were not averred in the replication, or in any way relied on to sustain the plaintiff’s case; neither could this matter have been replied to sustain the claim asserted in the declaration.

*

Debt on Single Bill — Oyer—Waiver of Objection for Variance, — In Thompson v. Boggs, 8 W. Va. 70, it is said: “If the defendant in debt on single bill or single bills, craves oyer of the same, and afterwards pleads to issue, he by oyer, has made the single bill, or single bills, a part of the pleadings and record; and, if, after oyer is taken and granted, he pleads payment, he cannot, at the trial of the issue, object to the single bill or single bills as evidence, on the ground of variance between the single bill or bills and the single bill or bills set forth in the declara*tion.*— Armstrong *v. Armstrongs,*1 *Leigh*491.”

And in Bennett v. Loyd, 6 Leigh 318, it is said: “The bond declared on, is recited as bearing date in 1811; that produced, and made part of the declaration upon oyer, is dated in 1810. That the variance is matter of substance, and fatal, appears by the case of Cooke v. Graham’s Adm’r (3 Cranch 229). It appears by that case, too, that the error is not cured by pleading over: for the defendant there, pleaded conditions performed, as the defendant did here; the plaintiff replied, and assigned a breach, and the defendant rejoined a bad rejoinder, to which the plaintiff demurred; the court went back to the first fault, and entered judgment on the demurrer for the defendant. The case of *Armstrong v. Armstrongs,*1 *Leigh*491, is notin conflict with this opinion: in that case, the question was upon the trial of the issue before the'jury; here, it is upon demurrer; and upon demurrer, where the defendant has taken oyer, he may take advantage of the variance. Macon v. Crump, 1 Call 575.” See also, citing the principal *case, foot-note*to Sterrett v. Teaford, 4 Gratt. 84. See monographic *note*on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.

†

Awards — Presumption.—In Fluharty v. Beatty, 22 W. Va. 705. it is said, presumptions are not to be raised for the purpose of overthrowing an award; but they are to be liberally construed so as to give effect and operation to the intent of the arbitrators, where it can be done, and every reasonable intendment is to be made in their support. Smith v. Smith, 4 Rand. 95; Gas Co. v. Wheeling, 8 W. Va. 321; Richards v. Brockenbrough, 1 Rand. 449; *Armstrong v. Armstrongs,*1 *Leigh*491. To the same effect the principal case is cited in Pollock v. Sutherlin, 25 Gratt. 95. See monographic *note*on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.

CARR, J.

The declaration describes the covenant, as submitting all matters in difference between the parties, to the arbitrators. Upon oyer prayed, the bond of submission is set out in hasc verba, and it appears to be a bond for the submission, not of all matters in difference generally, but of the matters of difference arising out of the killing a parcel of hogs. If the defendants had intended to take advantage of this variance, the proper mode, as prescribed by the books on pleading, would have been, after oyer, to have demurred for the difference between the covenant described, and that set out. 1 Chitt. Plead. 415. Instead of this course the defendants after oyer, pleaded that the arbitrators made no award of and concerning the premises in the covenant mentioned. The plaintiff replied setting out the award and charging the non-performance of the award as a breach of the covenant. To this there was a general demurrer, which being overruled, the defendants pleaded covenants performed; and on the trial of that issue, moved to exclude the bond. The court overruled the motion : and, without touching the general question whether the variance was material, I think the court was right, upon the ground, that the defendants by their oyer, made the bond a part of the record, indeed, (the books say) a part of the declaration; and could not afterwards object to its going to the jury. It was to the bond set out that they pleaded. 1 Chitt. Plead. 420; 1 Wms. Saund. 316; Jeffery v. White, 2 Doug. 476 ;* Ld. Raym. 1541; Cro. Car. 209. Therefore, upon the first point, I think there was no error in the hustings court.

This, indeed, was not the point on which the superiour court reversed the judgment. It says, “it seems to the court here that the said judgment is erroneous in this, that the appellee’s replication to the appellants’ plea, and the matters therein contained, are not sufficient in law, for the appellee to have and maintain his action,” &c. in other words, that there was no good award. This-is the serious question in the cause.

Two objections were taken to the award; 1. that it was not mutual; 2. that it was of matters not submitted, and so beyond the authority of the arbitrators. This last I think is the only question which need be considered: for the only object of the mutuality here spoken of, is, that by a compliance with the award, both parties shall be discharged, and all matters settled; and, in the case before us, if the arbitrators had power to award that the defendants should pay the money to the plaintiff, a payment under the award would discharge the bond of submission, and clear them forever of the demand.

The question then is, did the arbitrators overstep the limits of their power? Our cases as well as the English say, that awards are to be literally and favourably construed; that all the provisions of the statutes of jeofails apply strongly to these judgments given by this domestic forum, these judges of the parties own choosing. Thus in Richards v. Brockenbrough, this court said 1 ‘Every thing is to be presumed in favour of awards.” Let us look at the submission. Who are the parties submitting? “Archibald Armstrong of the one part, and Richard and Archibald Armstrong of the second part.” They say “a dispute has taken place between the said parties in relation to killing a parcel of hogs in Richmond, and the parties being desirous of settling the matter of difference between them &c. have chosen O. M. and P. A. M. to settle all difference between the said parties, and fix the amount to be paid to either party,” &c. To be “paid to either party, by whom? by the other party, of necessity — there are but two parties; A. A. the one; R. and A. A. the other. The arbitrators say, “On settlement of accounts, between A. Armstrong & Co. as per bond &c. it appears that A. Armstrong junior is indebted to A. Armstrong senior, 127 dollars, that is, allowing said A. A. junior, all the lard taken or made by said firm — And whereas R. A. one of the parties to the said bond, has sued A. A. senior on his own account &c. we do order and award, that 16 dollars and half the costs, shall be deducted out of the balance due A. A. senior, and the balance to be paid over to him by the above parties,” &c. The objection (as I understood it) is, that the arbitrators, after finding that A. A. junior owed this money, have awarded, that he and R. A. shall pay it — and also have undertaken to arbitrate concerning a demand of R. A. in his own right, against A. A. senior. As to the first, I did not un*177derstand it to be charged as misbehaviour, or partiality in the arbitrators, to direct R. A. to pay the debt of A. A. junior: and how could it be going out of the submission? Richard and Archibald junior make but one party: and they bind themselves to pay whatever shall be adjudged to the other party; not that Archibald junior shall pay what he may owe, and Richard what he may owe, but that they two, as one party, shall pay — Why did Richard join with Archibald junior? Surely, either as a part of the firm, on which Archibald senior had this demand, or as surety for Archibald junior. In either capacity, it was proper that the award should bind him to pay as this court said in Richards v. Brockenbrough. We are also to make all fair presumptions in favour of the award. Must we not then presume, that the arbitrators had before them unquestionable evidence, that R. A. was bound (either as principal or surety) for this debt? Can we presume, that they would say A. A. junior alone owes this debt, yet we will make R. A. jointly liable with him? This would be to presume against, instead of in favour of, their award. Again ; is not this presumption assisted by the fact, that after :ithe award was rendered, the parties all signed and sealed it, and the arbitrators attested this. Was not this a sort of assent to the award? If Richard had been unjustly and contrary to his submission, awarded to pay the debt of A. A. junior, would he not at once have revolted? As to the 16 dollars private debt of Richard, if we say he was bound for the whole 127 dollars to Archibald senior, this part of the award is wholly in his favour, and he cannot object; in his favour, because it gives him a judgment for his whole demand, and makes it a discount from the 127 dollars, which he is awarded to pay.

The other judges concurring, the judgment of the circuit court was reversed, and that of the hustings court affirmed.