The Hawaiian gazette., 1883-04-25
3aluaiian 6azette.
WEDNESDAY, APRIL Is. 1858.
Supreme Court of the Hawaiian Islands
Aprfl Term. 1883 In Banco.
J. c. MERRILL vs.. F. 7. LENEHAN.

Opinion Of the Court by Austin. J.

Opinion Of the OouIt ~ Ausuns =.
This action cones here in Writ Of Error
from a Judgment in favor Of demurrer Of the
defendant to the plaintiffs complaint.
The re;urTfshows that the action is in as
sumpsit upon an award and based upon a
written agreement to submit certain differences
and dispute between the parties hereto to
the arbiirament and determination of an
arbitrator named and TO be bound by his de-
eisioi, and the complaint alleges, that his
decision was daily made and published where
by he found certain sum due from the
defendant to the plaintiff upon said matters in
difference which defendant refused to pay on
demand and the plaintiff asked judgment
The defendant by his former attorney, Mr..
Davidson, demurred to the complaint as not in
compliance with the statute concerning ar
bi;rations, and as insufficient otherwise to
authorize 4 recovery.
The objection that the submission and
award ought to have been attached to the CON-
plant and the suit brought under Section 100
of the Code, We think not well taken.
The agreement made rests in two papers, the
first Of which as pleaded is based on unliquid-
ated demands and the second refers to the
first, and is not complete in itself We think
the suit was properly brough: in assumpsit.
The agreement as pleaded undoubtedly
would have been valid at common law, and it
constitutes plain and clear agreement which
ought to be enforced here unless the Statute
concerning arbitrations iorbids it.
This Statute provides specially how arbitra-
tons may be entered into and enforced by
certain fixed methods, and provides that
unless the StatAe be followed such arbitra-
tions cannot be enforced. But the Statute
does not exclude in terms other methods of
submission TO arbitration.
In Burnside VS.. Whitney, q y. Y. r., pages
l4s-9, the Court held, under statute similar
TO our Own, that the provisions Of such a
Statute were cumulative merely, not exclu-
sive; aud that an award pursuant TO sub
mission which wop'l have been valid at
common law, but .shich did not conform to
the statute would support an action
This holding.of the highest Court in New
York is in conformity with the holdings in
several other cases in that State.
1t is also followed and endorsed by the
decisions Of the Courts in England and in
many Of the highest Courts in the United
States, as shown by the citations Of the de-
PENDANTS counsel
In the case OF Bulson vs. Lohnes, 20 \. Y.
r., p. 37j, cited by the Chief Justice in his
opinion below, this doctrine was supposed to
be overruled. On a closer examination Of that
case we are convinced that such was not the
intention Of the Court That case held only
that in case where three arbitrator were
appointed the Statute OF arbitratiOus applied
to all eases whether made at common law or
specially under the Statute, in its provision
that all The abitTaiors must meet aud hear the
matters in controversy, though two only
might make the award. In that case only
two Of the arbiirators met and the defendant
was not present and did not sanction their
acts. The Court decided that these facts
invalida.Od the award which would have been
good at common law, but decided no other
point, and the ruling in 81, n. Y. r., still
remains intact in that State except as so
reasonably modified.
In Massachusetts only do the cases seem to
hold that submissions at common law would
be void. the case Of Deerield VS.. Arms, 20
Pick: 1881, cited for the defendant is
case where the parties strictly followed the
Statute except in one particular, and the Court
held this fatal. But it may be inferred from
the language used by the Court on pages 49,
that if the agreement to submit manifestly
did not intend to follow the Statute, such
agreement j! clear and definite might be bind
ing on the parties.
There Is nothing pleaded in this case show
ing an intention to follow the Statute. On the
contrary tue SUBMISSION as DledQcu appears 10
be outside Of that Statute.
In analogy to the body Of the decisions
made elsewhere, we hold that the complaint
AYERS a cause Of action.
We do not think public policy requires a
decision thar the Statute Of arhitrations shall
he always followed
If parties having unliquidated money DIFF
ferences should meet and agree TO settle, and
| thereupon one should deliver to the other his
obligation for the amount agreed upon, that
obligation would be enforceable and conclu-
sive on both parties. and only fraud and mis-
/ take could defeat it,
We think reason says, that unless expressly
forbidden by the law, the same parties should
have the right to agree that whatever sum an
| arbitrator determines that either Of the par
ties owes the other, shall be the sum due from
him.
We think the decision must be reversed
with liberty to the defendant TO answer in
| twenty days.
F. NJ. Hatch and L. Preston for plaintiff. A.
5. Hartwel for defendant in error.
Honolulu, April llth, 1883.