On looking at the submission and awards, it is manifest that the arbitrators have passed on the two matters submitted to them, and intended to make, and have substantially made their award upon them. If the controversies between the parties are not closed by the judgment of this court, of their own creation and selection, it is because some technical rule on the subject of awards has been violated.
I concur in the opinion of the supreme court delivered by Mr. J. GRIDLEY, that the two matters in dispute between the parties, mentioned in the bonds of submission, were submitted to the arbitrators; but I do not think it follows, and cannot concur in the position, that an award upon each must be embraced in the same instrument.
The learned judge discussed this point with his usual clearness and ability when this case was before the supreme court on an issue of law, (4 Barb. S.C.R. 250,) and came *Page 490 to the conclusion, that as the two matters submitted were distinct, a separate award might be made upon each. This conclusion appears to me to be sound; and I do not see any such difference between the case, as it stood on the issue of law, and as it now stands on the special verdict, as should lead to a different opinion on this point. It is true, as mentioned by the learned judge, that both awards were not fully set forth on the former occasion, but the bonds of submission were, and on them alone depends the question, whether the two matters submitted are so distinct as to admit of separate awards. It appears to me that there is no room to doubt that the parties not only submitted two distinct matters, but provided for separate awards upon them. The language of their bonds is clear and explicit on this point. While the correctness of the rule is admitted, that each party has a right to claim that both subjects shall be awarded upon, yet it is unreasonable, and contrary to the received doctrine on this subject, that the parties may not provide for separate awards. I place my opinion in this case in favor of the correctness of separate awards, on the meaning and true construction of the bonds of submission.
The only remaining question is, whether the endorsement on the contract is an award in pursuance of the submission. The terms of the submission are, "to hear all the proofs and "allegations of and concerning the amount which has been "actually paid upon a certain contract between the said "Schroeppel of the one part, and the said Edward Ott and "Joseph Ott of the other part, of date March 1st, 1835, which "in justice should be applied thereon, and endorse the amount "so found on said contract."
On that contract is an endorsement, signed by the arbitrators bearing even date with their formal award on the other matter submitted, viz: 28th January, 1843, in the following words: "The whole amount which has been paid, "actually on the within contract, up to the first day of January, "in the year 1841, is, and by our award, amounts to, *Page 491 "the sum of five hundred thirty dollars and sixty-two cents, "given, c." In my judgment, this is an award, in substantial compliance with the submission. To hold the contrary, would do violence to common sense and sacrifice substance to form. There are two objections made to it.
1. It is said the submission required the arbitrators to decide the amount actually paid on the contract up to the date of the submission, viz: 28th December, 1842. The answer is that they have so decided; for in the absence of an averment to the contrary, the court are bound to presume there were no payments made, nor any controversy between the parties respecting any payments after the 1st January, 1841. If in point of fact, there were no payments on the contract after the first of January, 1841, nor any question raised before the arbitrators concerning any such payments, and that fact appeared, the award would be good. But the true rule is more favorable still, to the validity of the award. "Everything is to be intended in favor of an award." (Watson on Arbitration Awards, 122.) In accordance with this principle, it has been held in this state, (Case v.Ferris, 2 Hill, 75,) that, "if there is nothing on the face of an "award shewing that it may not be rendered certain by "matter extrinsic, the intendment will be, that it is certain, "until the contrary be shewn." And on the very point under consideration, SPENCER, J. in the case of Jackson v. Ambler, (14 John, R. 106,) states the rule in these words: — "for though the words of the submission be more comprehensive "than those of the award, yet if it do not appear, "that anything else was in dispute between the parties beside "what is comprehended in the award, the award will be "good."
This decision is decisive against the objection that the award is not as comprehensive as the submission.
2. The other objection to the award is, that there is a witness to the signatures of only two of the arbitrators.
The answer which the learned judge gave to this objection, *Page 492 when the case was before the supreme court on demurrer, is the true one. (4 Barb. S.C.R. 255.) It was, that "in law, the award not being attested as to the third arbitrator, "was not his award. It was, in legal intendment, "the award of the two, who subscribed it, and whose signatures "were attested." It should be noticed, however, in this connection, that the submission provided, that the award should be in writing, subscribed by the arbitrators, or any two of them, and attested by a subscribing witness. Hence an attestation to the subscription of two of the arbitrators is a full compliance with the requirement of the submission.
Judgment reversed without costs, and judgment for appellants, with costs in the supreme court.