#### George Birkbeck, *versus*Silas E. Burrows.

The plaintiff by a contract in writing, agreed to “ make and complete” for the defendant a steam engine, which he warranted against “ordinary ware” for the space of sixty days. After the engine was delivered, repairs were made upon it by the plaintiff, for. which he brought an action of assumpsit. At the the trial the defendant set up an *award*in his defence, and insisted that *all*matters in controversy between himself and the plaintiff had been submitted to an arbitrator. The award was not accompanied by any *submission,*and the plaintiff was permitted to call the arbitrator to prove that the submission, did not embrace the claims for for which *this*action was brought. Held, that as the submission was *by parole,*and as the award did not in terms cover all matters in controversy between the parties, the evidence of the arbitrator to shew what tho matters submitted were, was rightfully admitted.

It having been proved by the plaintiff that the defendant had offered him a certain sum to settle the controversy between them, the defendant produced a copy of a letter from himself to the plaintiff,^explanatory of that offer. The writing was excluded by the presiding Judge, but the defendant was permitted to prove the fact, that he had made such a communication. Held, that the testimony thus offered by the defendant, being in effect Iris own declarations, was rightfully rejected.

The arbitrator testified that when the parties were before him, a bill was presented specifying the accounts submitted *;*a copy of which he transmitted to the plaintiff, accompanied.by the award : but the plaintiff denied that the account was received by him. Held that the plaintiff was not thereby precluded from introducing other evidence as to the items of his claims, unless the defendant could shew that the account came into his possession or under his control.

The defendant offered to shew what articles enter into the composition of a “complete steam engine” and that many of those embraced in the plaintiff's bill were of that description. This evidence was excluded by the presiding Judge, and his decision was *held to*be correct.

The Judge charged the jury that the *award*was *conclusive*as to every thing which had been *submitted:*and left them to say whether the items of the present claim had been before the arbitrator or not. If they *had,*then that their verdict should be for the defendant; but if they had *not,*then that their verdict would be for plaintiff. That by the agreement between the parties, the plaintiff was bound to make good all damages to the steam engine arising from ordinary wear *52for the space of sixty days : and that if any of the present charges were of that kind, they were to be excluded from the account. *Held*that the charge and ruling of the Judge were in all respects correct: but the jury having found a verdict for 8925 43, in favor of the plaintifij it was set aside (on payment of costs by the defendant) upon theground that *substantial justice*had mot been done to the defendant.

Where a new trial is granted, not from any mistake or misdirection on the part of the Judge, but in consequence of an error or incorrect finding by the jury, the *party moving*to set aside the verdict, is bound to pay the costs.

This was an application for a new trial on the part of the defendant. The action was originally brought to recover the amount of a bill, for work done and repairs made upon a certain steam engine and steam boat belonging to the defendant; the declaration containing merely the common counts in assumpsit for work, labour and materials.

The cause was tried before the Chief Justice. At the trial the plaintiff gave in evidence his books of accounts, from which his bill of particulars had been copied, and called witnesses to prove the performance of the services, and the correctness of his charges.

The account commenced on the 9 th of April 1825, and ended on the 23d of July following. The plaintiff also called a witness who testified, that in the month of December 1825, he presented the plaintiff’s account to the defendant for payment. That the defendant observed, that a part of it had been submitted to arbitration; but he would pay five hundred and fifty dollars to close the concern, and settle the business. The defendant on his part offered evidence to show that the services for which the 'plaintiff sought to recover, 'had been performed under a written contract, to build and complete a steam engine for the defendant. That in consequence of some disagreement between the parties, their accounts had been submitted to an arbitrator by mutual consent; that the arbitrator had made an award in favour of the plaintifij the amount of which had been paid by the defendant. And it was a principal subject of controversy, whether the *submission*to the arbitrator included all matters in difference between the parties, or only certain specific *53charges for *extra*work upon the steam engine, not embraced by the written contract.

The defendant gave in evidence the written contract between himself and the plaintiff, bearing date the 19th of August, 1824; wherein the latter had stipulated and agreed to make and complete a steam engine for the defendant, according to certain specifications therein contained, for a steam boat which he was then constructing. And by a further contract between the parties, dated April the 21st, 1825, the defendant agreed, “to guaranty the breaking and ordinary ware of the said engine, for sixty days provided it was not broken by some uncommon gale, or by running against some object.

The defendant also produced certain receipts shewing payments for the principal part of the engine, together with the following award of the arbitrator, viz: Whereas Geo. Birkbeck “ and Silas E. Burrows, having *certain*disputes and controversies subsisting, arising out of the charges and demands of the “ said Birkbeck, against the said Burrows, relative to the steam “ boat New-London, which controversies, disputes, charges and “ demands, the said parties have submitted to my arbitrament “ and award, and have made their allegations and proofs respect- “ ively before me, now know ye, that having examined the ma*tt*ers submitted to me, I have ascertained and awarded and do “ hereby award that there is due to the said George Birkbeck “ from the said Silas E. Burrows on account of the premises the sum of $945 74, and I do award and order that the said Bur- “ rows do in five days after notice of this award pay the said sum “ in full satisfaction of all and singular the premises, and that “ upon such payment, mutual releases be executed by the said “ parties, the one to the other. In witness whereof I have here***unto set my hand and seal this first day of September, 1825.”

(Signed) Q. H. HICKS, [l. s.]

On this award was endorsed the following receipt. “New-York Sept. 5th, 1825. Received of Silas E. Burrows, for and “ on account of George Birkbeck, nine hundred and forty five dollars and seventy four cents in full.

(Signed) JNO. A. MOORE.

*54The plaintiff to rebut this evidence, called John A. Moore, as a witness to prove that the subject matter of the present suit had not been submitted to the arbitrator. To this evidence the counsel for the defendant objected: and it was ruled by the presiding Judge, that evidence as to the claims and facts actually put before the arbitrator at the hearing was inadmissible, *except for thé purpose of showing what the submission ivas*; but that the plaintiff might inquireas to what the parties had agreed *to submit*to the arbitrators, the submission having been by parol; and that the arbitrator himself was the proper witness to prove those facts.

To this opinion the counsel for the defendant excepted.

The plaintiff then called the arbitrator, who testified that the submission was by parol and was “ *of all claims for extra work to the steam boat New-London?*That a bill was laid before him specifying the accounts submitted, and that the items therein were the only matters on which he acted. He understood the submission to embrace all claims and matters of account between the parties up to the time of the submission, and thought that the account contained charges for extra work upon the engine. Nothing was said of any other matters of account not included in the submission; and the witness gave a copy of his award *together with the plaintiff's account*to his son, with directions that they should be handed to the plaintiff. The son of the witness was now dead, and he could not say whether the papers ever reached the plaintiff, or not.

*The counsel for the*defendant here called for *the*account, as containing the best evidence of what had been submitted. But the plaintiff alleged that it had never been received by him.

The plaintiff also produced witnesses to prove, that the matters submitted to the arbitrator, were altogether for *extra work*upon the steam engine and not for repairs ; and that the controversy was then confined to the question whether such extra work was within the contract to construct the engine, or not.

The defendant then offered in evidence a copy of a written communication from himself to the plaintiff, relative to the present claim, bearing date the 4th of April, 1826 : but this evidence *55was overuled by the presiding Judge, who, however permitted the defendant to prove the fact, that such a communication had been made. The defendant also offered evidence to show what articles were necessary, to make a complete engine within the contract, and that some of the articles charged in the present bill, were of that description.

This evidence was also excluded by the Judge, who charged the jury, that the award was a final bar to every claim submitted to the arbitrator; but as to *what had been submitted,*that was a question of fact for them. That the account laid before the arbitrator, would, if in evidence, be conclusive upon that point; but as it had not been produced, the Jury must decide upon the testimonybefore them, as to the charges which had actually been submitted to the arbitrator. That if the charges contained -in the present bill, had been included in the former account, their verdict would be for the defendant, otherwise for the plaintiff. That if the Jury should be satisfied that the charges in the present bill, *up to the time of the award,*were included in the account submitted, and that the *residue*was not so included, then the *time*of the submission would become material. That the testimony upon this point, was not sufficient to fix that time with precision, and if the jury could not be satisfied as to this, then that the defendant’s own offer to pay $550 would be perhaps the most equitable rule of damages. But upon all these points, the decision was left to their discretion. The jury were also charged, (upon the legal effect of the contract to keep the boat in repair,) that the plaintiff was bound to make good all damages arising from the breaking of the engine from ordinary ware, for the space of sixty days ; and that they were to say whether any of the present charges fell within that contract, if they did, then such charges were to be deducted.

The jury returned a verdict in favor of the plaintiff for nine hundred and twenty five dollars and forty three cents ; and the defendant now moved for a new trial.

Mr. D. *Graham*and Mr. *Ogden Hoffman*for the defendant, and in support of the motion, contended—

*56I. That parol evidence of the matters which the parties had agreed to submit to the arbitrator, ought not to have been received at the trial. It appeared, from the testimony, that there was no *written submission ;*but the *award*was *in*writing, and recites the matters which were submitted. It is therefore not only the best evidence as to what was submitted, but it is conclusive unless impeached for corruption in the arbitrator. It expressly states, that the parties *“*having *certain*disputes and controversies subsisting,” have submitted them to the decision of the arbitrator. This should be taken to mean *all causes of action,*subsisting at the time. The award contemplates a final end of all controversies ; for it decrees that *mutual releases should be executed*by both parties. How then was any thing to be left for future litigation *1*

This is certainly better evidence of what was actually submitted, than any thing to be derived from the memory of witnesses, as such testimony must always be vague and uncertain. The recitals in the award therefore are evidence of the matters submitted, and should be deemed conclusive. [9 *John R.*38. *12 J. R.*311.] The decree of the arbitrator, voluntarily selected by the parties, having been complied with on the part of the defendant, and the amount of the award having been received by the plaintiff the award itself was conclusive upon the parties, and could not be opened.

But if this be not so,—if the award and its recitals were net conclusive evidence of every thing which was submitted, still the plaintiff was bound to produce the *best*evidence of what was submitted, because he had the power to produce *conclusive*evidence on this point, while the defendant had not. The account furnished to the arbitrator by the plaintiff himself, would have been conclusive evidence of every thing which the plaintiff claimed at the time of the award. That account was traced into the possession of the plaintiff, or into such a situation that it was a fair presumption that it was received by him. He therefore was bound to account for its non-production, before he could be allowed to go into other evidence of what the account contained. [10 *John R.*363.]

*57II. Parol evidence as to what was *clamed*before the arbitrators ought not to have been received. [3. *Caine’s R.*167. 3. *John R.*367. *2. Bay’s R.*94.] But the copy of the defendant’s letter to the plaintiff, relative to this very claim, and which was proved to have been delivered to him, ought to have been admitted at the trial. It would have had a material bearing upon that part of the plaintiff’s proof which related to the confessions of the defendant, and would have shown that he never intended to admit the justice of the present demand in any shape. But if parol evidence was admissible to prove the plaintiff’s claims, then the defendant ought to have been permitted to show what articles enter into the structure of a complete engine, that the jury might decide whether or not a part of the articles charged were of that description. Such testimony was offered at the trial, and rejected. It was competent for the defendant to prove these facts for the purpose of showing that the very articles charged in the present account were in truth, furnished under the contract. All the articles charged, were furnished after the boat was delivered; and the plaintiff was bound by the contract to keep the machinery in repair for sixty days thereafter. Under every aspect of the case, therefore, the testimony was proper, and ought to have been received.

III. The jury were misdirected in being charged, I. as to the *legal effect*of the award. 2d. In being charged that it was a question for them to decide, as to what had been submitted to the arbitrator. 3. In being told, in effect, that if they should not believe the charges now made were contained in the account submitted to the arbitrator, they must find a verdict for the plaintiff. As to the legal effect of the contract, the charge should have been, that it was the presumption both of fact and law, that all matters in controversy between the parties, *which ought to have been submitted*to the arbitrator, were contained in the submission. The weight of evidence upon the questions of fact, was on the side of the defendant; but the charge of the judge plainly intimates that the plaintiff was entitled to a verdict for *something,*and seems to take it for granted, that the defendant’s offer to pay five hun*58dred and fifty dollars, was evidence that *so muck,*at least, was due to the plaintiff. This shews the impropriety of excluding the defendant’s letter; for it will be observed, that the defendant, even by the testimony of the plaintiff’s own witness, never admitted that *he owed*the plaintiff *any thing;*he merely offered to pay a certain sum to escape from a controversy with the plaintiff. The defendant by no means intended to admit that the *offer*was proved,—but if proved, he ought to have had the privilege of explaining it.

IV. Injustice has been done to the defendant by the jury, in their method of ascertaining the balance due to the plaintiff!— and there is important newly discovered evidence which entitles the defendant to a new trial. [The counsel for the defendant read an affidavit in support of the last point, and went into a minute examination of the testimony produced at the trial relative to the state of the accounts between the parties, for the purpose of showing that the verdict of the jury was erroneous and ought to be set aside.]

• Mr. *J. JLnihon, contra*for the plaintiff.

I. The bill exhibited against the defendant in this suit, was *hr*repairing the machinery of the steamboat, after her delivery to the defendant; and the question is, whether any claims for *such repairs*were ever submitted to the arbitrator". The plaintiff contends, that the matters submitted, related exclusively to *extra work,*in constructing the steam engine ; for *original*work, beyond that required by the contract, and such as the experience or fancy of the defendant called for. It is evident that the award is no bar to the plaintiff’s claims, if it shall appear that they were never *submitted*to the arbitrator. How was the *plaintiff*to prove what the subjects of the arbitration were ? At the trial, the *defendant*introduced the award, and the plaintiff called for the *submission,*because an award without a submission is a mere nullity.

*59It appeared, from the testimony of the arbitrator himself, that the submission was by parol, and it surely was competent for the plaintiff then to shew what the subjects of the submission were that he might thereby prove that his present bill had never been before the arbitrator, and that the present claims had never been submitted to him by the parties for his award.

The whole question then turns upon (he inquiry whether the award is conclusive or not. It is undoubtedly conclusive if it embraces the subject of our present claim *;*but the award in its terms does not comprehend *all*matters in dispute. It recites *certain*controversies, and leaves the plaintiff to show what those controversies were. There are two classes of cases presented by the books : one of *all demands*between the parties ; the other of all matters *in difference.*The first includes all claims up to the time of the award, but in the other it must be shown what the matters in difference were. [4 *D. & E.*146, *in*notis. 12 *John. R.*312. *Starkie on Evi. book 4. p.*139. 4 *Esp. R.*180. 16 *John. R.*136. *Phillips v. Bennick.]*

In the present case how were we to ascertain the subject matter of the submission except by parol proof *1*If we refer to the award, we are left to the same rule, for that speaks only of “ *certain disputes and*controversies.” It is obvious therefore that it must be shown what those disputes and controversies were, and there was no way of showing them, except by parol proof. The award itself could not bind beyond the submission, and we proved to the jury that our present claims were never submitted to the arbitrator. They *could*not have been submitted, for they were not *then*the subjects *of dispute,*and those facts we had a right to prove. Upon these points therefore the presiding Judge was undoubtedly right, and the evidence was all properly admitted.

II. The contents of the written communication from the defendant to the plaintiff were properly excluded; for if admitted, it would enable the party *to make*evidence for himself. If proved, nothing would be shown but the defendant’s declarations in his own favor, which can never be admitted as evidence. The fact that the communication was made, the defendant did prove; he *60had all the benefit of the inference to be derived from that fat and could not complain that the rules of evidence were not extended further.

III. The testimony which the defendant sought to introduce for the purpose of showing what articles go into the construction of a complete engine, was properly excluded, because entirely *foreign to the*controversy. This action is brought for *repairs*alone; how then could the defendant be allowed to prove, what the plaintiff ought originally to have *made ?*

IV. The whole case was submitted to the jury upon terms most favorable to the defendant. The charge of the Judge, was perfectly impartial upon all the questions of fact; but if it had not been, how could this court interfere with the charge for any supposed bias as to questions of fact *1*The jury have found that the plaintiff performed the services for which this action is brought; they have found that the questions relative to those services have never been submitted to any arbitrator, and that the defendant has never remunerated the plaintiff for his labor, They have also found, that our claim is for repairing machinery previously constructed, and that by the terms of the contract, the plaintiff was not bound to make those repairs. If these facts are so, (and that they are, the court is bound to presume, being found by the jury) why should not the defendant pay the amount of the verdict *1*The .charge of the Judge upon the contract was in favor of the defendant, for he told the jury that the plaintiff was bound to keep the engine in repair, for sixty days; and if the claim, in our account, were for the repairs required by the contract, then, that the plaintiff was not entitled to recover. We proved that they were required from the carelessness of the defendant’s agents, and the jury have so found by their verdict. Every possible objection to the charge of the Judge is removed, and the defendant can only complain because the jury have found the *facts*against him. That finding was consistent with the law, the evidence and the justice of the case, and the verdict ought to be permitted to stand, for the amount found by the jury.

*61V. As to the newly discovered evidence, it was, at best, but cumulative, and could not lay the foundation of a new trial. [16 *John. R. Smith v. Brush.*8 *J. R.*84. 15 *J. R.*220. 4 *J. R.*425.]

*Per Curiam.*

The first ground upon which the defendant’s application for a new trial rests, cannot be maintained. The award does not upon its face purport to cover *all*subjects in controversy between the parties; but it recites “ certain disputes arising out of the charges of the plaintiff against the defendant, relative to the steam-boat New-London.” It may be, that those controversies arose concerning matters entirely different from the charges embraced within the present claim, and as the submission to the arbitrator was by parol, the plaintiff had no means of showing what the subjects submitted were, except by calling witnesses; and if parol testimony was admissible, the arbitrator himself was not only a competent, but the best witness to be produced. The award is not upon its face, or by its terms, conclusive as to the matters submitted; but it is sufficient to cast upon the plaintiff the burthen of showing what the matters in dispute were which the arbitrator had before him, and that the present claims were not included in the submission or embraced by the award. The submission, it appears, was by parol, and the plaintiff could not therefore introduce any thing but parol evidence as to the matters submitted. By calling the arbitrator as a witness, he furnished the best evidence in his power, and that evidence was rightfully admitted. The award would of course have been conclusive, if it had embraced the subject of the plaintiff’s present claims, and the fact as to whether it did, or did not embrace those claims, was properly submitted to the jury. Upon this point, therefore, the decision of the Judge at the trial was entirely correct.

As to the excluding of the written communication from the defendant to the plaintiff, we can see no error in that. Its contents, if proved, would amount to nothing more than a declaration made by a party in his own favour, and the defendant had all the benefit which he could rightfully claim from the writing as evi *62dence. He was permitted to prove the fact that he had delivered to the plaintiff the written communication, and as it was not produced by him, all the inferences to be drawn from the withholding of it, were in favour of the defendant.

With regard to the account furnished to the arbitrator,—it would undoubtedly have been the best evidence to show, whether the items of the present claim were embraced in the former submission or not; and it would be very desirable to obtain that account if it were practicable. But it would be going too far to say, that the plaintiff should be precluded from offering any evidence of his demands, because the arbitrator had placed the account in the hands of his son, with directions that it should be delivered to the plaintiff. The person who received the account was not the agent of the plaintiff, and as there is no proof that it was delivered to the latter, or put under his controul, he could not be precluded from offering the best evidence in his power as to the nature, items, and amount of his claims.

Neither do we perceive any error in the charge of the Judge to the jury. His construction of the agreement between the plaintiff and the defendant, was undoubtedly the correct one ; and all the questions of fact were fairly submitted to the jury. But in their *finding,*upon the evidence, there is reason to think that they have not done substantial justice to the defendant. The account, as presented by the case, shows that the jury have either misunderstood some parts of it, or that they have made an erroneous application of the evidence to the matters before them. It is evident, on inspection, that the plaintiff has been allowed for many articles which he was bound to furnish under his agreement to keep the ■ engine in repair, and for them the defendant cannot be made responsible. Upon the whole, we can perceive no error either in the charge to the jury, or in the ruling of the Judge as to the evidence ; but we think thdf *verdict*excessive and erroneous. We shall therefore *set it*aside, and direct a new trial, up *on the*payment of the costs by the defendant.

Where a verdict is set aside upon the ground of error or mistake on the part of the jury, according to the established practice, *63the party moving for the new trial is bound to pay the coats, and in this case they must be paid by the defendant.

*New trial granted on payment of costs by the*defendant.

[E. Anthon, *Att'y for the pltff.*D. Graham, *Att'y for the deft.]*