Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-09
SUPREME COURT OPINIONS.
September Term - Knoxville,
1870.

No. l47.


the arbitration.
An award obtained, by inducing the adverse
party, brother, to yield portion of his claim,
under threat to prosecute the Esther OF both
'for perjury" on q charge for which there was
no foundation, win be set aside in Court Of
Equity.
From the Chancery Court at Greene
vile, Seth. ]. w. Lucky, Oh.
Nelson, j., having been of counsel, did
not sit in this case. His brief for COM
plainant was presented by r. M. Barton,
who also appeared for complainant.
r. Mcfarland for defendant.
OPINION.
The complainant and the defendant are
brothers, and the sons of William
Mathews, now deceased.
1t appears that the father was the
owner of q tract of land, and that by a
parol contract he agreed to convey it to
the defendant that afterwards he changed
his mind, and actually conveyed it to the
complainant Thereupon the defendant
filed bill in the Chancery Court at
Greeneville against both the complainant
and his father, the said William, the OBJ
ject of which was to have the said con-
yeyance set aside and a specific execution
of the parQl contract which had been pre-
viously made; or, if this could not be
done, to establish an account against the
said William, and to have a decree for
the saleof sufficient quantity of said
land to satisfy the same. The bill was
answered by the defendants with some
particularly as to the matters of the &C
count between the parties, which need
n9 be here stated.
Pending this suit Joseph and William
agreed to submit the matter really lit
gated TO arbitration, but their father did
not join in the agreement. This agree
ment was written, and after citing the
tendency of the suit, states that the said
Joseph and William agree ''to draw said
suit out of cou t, and to have the mstters
in dispute arbitrated; that Solomon ''shsll
lay before the arbitrators an account of
all the charges that he has against Will
liam Mathews" and that Joseph should
''exhibit an account against Solomon for
everything that the SAID William Mathews
has charged against the said Solomon"
The agreement further provides for the
selection of arbitrator and binds the par
ties to submit to their award.
In pursuance of this agreement en-
award was made IN favor of Solomon, that
Joseph and William Mathews pay to
him the sum of four hundred and nine
dollars, two hundred, in six months, with
interest from the date of the award, and
the remainder in twelve months with in
terest, and that the costs be equally divi-
ded between the three.
The submission did not provide that
the award should be made the judgment
of the court; but on the contrary, pro-
vided that the bill should be dismissed,
which seems to have been done before the
award was made.
Upon the award two suits were insti-
tuted before justice of the peace, one
upon each amount awarded, as it became
due. In both cases Solomon Mathews
obtained judgments, from both of which
appeals were prayed and granted to the
Circuit Court, where the same are now
pending.
This bill was filed for the purpose of
having the said award declared void and
set aside, and the two suits pending on
the same perpetually enjoined.
The bill charges that'said award was pro-
cured by gross fraud and imposition on
the part of said Solomon Mathews, that
the compainant.made out and presented
his fathers account substantially as 1t had
been stated in he said award, inclusive
of certain wagon particularly mena
toned and charged in the answer; that
after several witnesses had been exam
ined the arbitrators adjourned until the
next day; that on the morning of the
second day, and before the agbitrstor5 re-
sumed the consideration Of the matters
submitted to them, the said Solomon took
the complainant aside aud said that he
was surprised at the charge of the wagon
in the account; that the said William had
sworn to both the answer and the ac-
count; that in the answer he had claimed
compensation for only the use of the
wagon, and in the account he had charged
for the wagon itself; "that the old man
had periured himself in swearing
to the correctness of the one or the other,
and that he would prosecute "the old
man" for perjury unless the charge for
the wagon and also a charge for labor
done by ''the old man and mentioned in
the same answer were both stricken from
the account. Tae bill further charges
that there was no substantial difference
between the said answer and account, but
that this did not occur to him at the time;
and that being greatly alarmed by this IN
natural and unfeeling threat by bis brother
to prosecute their father who was far ad-
vauced in life and in feeble health and to
save him from the veXation and annoy
ance of such charge, he agreed to, ard
did, strike out said two items; but for
which no award would have been made
in favor of the said Solomon. For this
reason snd because the complainant was
not indebted to the said Solomon, so that
the said submission was as to complain
ant without consideration; and because
the said William not having signed the
agreement of submission was not party
thereto so that the arbitrat0rs exceeded
their authority in making joint award
against the said William and complainant;
it is insisted that the award is null and
void
The bill does not excuse the defendant
from answering on oath, and the answer
in response substantially denies the sllegs-
tons of the bill as to the circumstances
under which the said two items were
stricken from the account.
Upon a view of all the facts and cir
cumstances which surrounded the parties
at the time of the submission, and of the
questions involved in the pending litigs-
ton, we think the complainant in the
present suit hsd an interest in the matters
submitted sufficient to support his agree
ment to abide by and perform the award
of the arbitrator.
And we are further of the opinion that
the fact that the award is in part against
the father of Joseph and Solomon Math-
ews, who was not party TO the submits
sion, does not render it void as to Joseph.
The arbitrator did transcend their au-
thoTity in this particular but an award
may be good in part and bad in part 1t
is void only pro tauto if that which is
void affects not the merits Of the submits
sion. Such, we think, is the case now
before US. If there were nothing more
in the way, we should hold the award
binding as to the complainant Mcbride
VS. Hagan, / Wend 30G; Clement VS. Du-
gin, l Greenl. 800; 6 Greenl. 247; Johns.
264, Cow. 6SS. Caldwell onArbitration,
276. Z
But we think THE proof fully sustains
the allegations of The bill, as to the sup
preston Of the two items in the account,
on the trial before the arbitrator, aud
this after giving to the answer the force
and effect it is entitled to as evidence.
1t is very clearly made out that the com
plainant struck out these two items, be-
Cause of these threats made by the de-
PENDANT, to prosecute the father for the
crime of perjury. There was no found
alton in fact for the charge of perjury.
The father in his answer had stated that
Solomon was liable TO account to him for
the use of the wagon, or if he retainedit
aud some other property mentioned, for
the value of the whole, and the wagon