Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-08-12
Law COURT DECISIONS.

.ne case OF Eilora j. Cole, against
Lei'y l.. fogg, an action for alleged
siahder, the defendants executions are
oVerruied. The rescript In the case is
as follows:
The words alleged to have been
spoken by the defendant considered in
'"e hSH' ol the circumstances alleged,
are susceptible of the meaning alleged.
VIZ: that the plaintiff had committed
adultery. whether such was the mean
ing OF the words, or whether they
would bear that meaning to those who
heard them, are questions for the
jury"
Inc verdict of the jury in the case
of Emma A. Topley against Betsey
Ioplcy, an action on a promissory
note, IS sustained. The rescript is as
fOllOws:,
80 avoid the statute Of limitations
which had been duly pleaded to this
action upon a promissory note. which
was upon its face barred by the stat
ute, the plaintiff undertook to establish,
the proposition of fact that the par
ties TO the note at'irnatively and def
nitely agreed that an annual rental for
the use of stable should be applied
in payment of the interest on the note
The jury found against this PROPOSE
ton and there was considerable evil
dencc directly against it. The court is
not satisfied that the jury erred. Mo-
ton Overruled.'
The decision in the action of Joseph
n. Fisher. against the Merchants In
Surance Co., is of general public inter
est, as it involves points of law re-
latinS to fire insurance. Chief Justice
Wiswell's summary of the opinion is
as follows:
"A stipulation in contract provid-
ing for the settlement by arbitration
of all controversies and disputes that
might subsequently arise between the
parties is invalid. because its effect
would he to Dust the courts of their
jurisdiction: but if the arbitration
agreement relates only to the deter
mination of some preliminary matters,
such as the amount of damages to be
recovered. and does not apply to the
whole question of liability, such pro-
vision. when n reasonable and definite
method is provided for choosing the
arbitrator. is valid and enforceable.
"A provision of this kind in con-
tract may make such determination by
arbitration a condition precedent to
the maintenance of an action upon the
contract. or it may be simply cOllat-
eral and independent agreement which
will not prevent the maintenance OF a
suit upon the principal contract. but
which would be the basis of separate
Of
ponds upon the construction of the
arbitration provision. When the con-
tract provides that no action upon it
shall be maintained until after such an
award, then the award is condition
precedent to the right of action.
"A policy of fire insurance contained
This provision: In case of loss under
this policy and the failure Of the parties
to agree as to the amount or loss. IL i
mutually agreed that the amount OF suc'i
loss shall he referred to three disintereSt,
ed men the company and the insured
each choosing one out of three persons I"
be named by the other. and third TO be
selected by the two persons SO CHOSEN :
the award in writing by a majority OF the
referees shall he conclusive and final upon
the parties as To the amount OF loss OF
damage. and such reference unless waived
bv the PARTIES shall he condition prece-
dent to any right of action in law or equl-
~ to recover for such loss; but no person
shall be chosen to act as referee against
the objection of either party. who has act
cd in like capacity within four months
The property covered by the insurance
policy having been destroyed by IRE, the
plaintiff and the defendant company Sc
lected arbitratorS in the manner proNldeti
in the arbitration clause above quoted.
Those arbitrators fixed time ana place
for hearing, gave notice TO Inc paruNS
heard them together with their c"ulsa;,S
and witnesses and made an award in "ri'-
ing fixing the amount of uamasc sustain
ed by the insured by reason of the destruc-
ton by fire of the property covered j"
the policy.
In this action upon the policy the pain
tiff sought to recover damages irrespcc-
tive of the amount awarded by the arpl,
traitors. upon the ground that the aware
was invalid and void. by reason of the
misconduct of the referees during anu
prior to the hearing before them. me
declaration contained no averment to the
effect that the alleged failure of the arnl-
tration was through any fault Of the dc
PENDANT
Held That the determination by ar
btration of the amount OF loss having
been specially made by the parties con
dition precedent to any right of action.
It was Incumbent upon the rdinutt 10
urove performance or Il valid excuse Tor
Ihat n the AWARE or
the arbitrator was invalid as claimed ~
the plaintiff for reasons set out IN the
declaration, it WAS the duty OF the pam
tiff to seek his loss in the manner proNid-
I'd by the contract. That the action con
only be maintained to recover the amount
determined upon by the arbitrators. or
If their determine ton and award Were in
valid. then the plaintiff must aileSe and
prove either, that the amount of III"
plaintiffs loss has been determined ~
other arbitrator chosen in the manner
stipulated by the parties. or some subj
Gent reason why such determination
has become unnecessary or Impossible.
Exceptions sustained