There was no special finding of facts by the judge before whom this cause was tried at special term, nor by the general term of the Supreme Court. The bill of exceptions contains some evidence tending to show that improper motives were entertained by one of the appraisers, and that he might have acted improperly in making the appraisal. The court below, having given judgment for the plaintiffs, must be presumed to have found that there was no improper conduct by the appraisers in making their award. This determination, being upon a question of fact, cannot be reviewed by this court. The same remark is applicable to the questions, whether the amount awarded to the plaintiffs by the appraisers was so disproportioned to the value of the land to be taken, and the damages occasioned to the plaintiffs by constructing and operating a railroad through their farm, as to prove that the award was fraudulently made by the appraisers, or so excessive that the court, in the exercise of its legal discretion, will not enforce a specific performance of the contract against the defendant.
The defendant, having taken possession of the land and continued such possession up to the trial of the cause, could not insist upon the failure of the plaintiffs to tender a deed conveying to it an unincumbered title within the time limited by the agreement. Such failure constituted no defence to the action. (Stevenson v. Maxwell, 2 Comst., 408.) A specific performance in a proper case will be decreed against the purchaser when the vendor is able to give a perfect title at the time of trial. (Brown v. Haff, 5 Paige, 235; More v.Smedburgh, 8 id., 600; S.C. upon appeal, 26 Wend., 238.) *Page 189
The clause fixing the damages to be paid by the party in default does not constitute a defence to this action. The agreement to take the land and pay the sum awarded, is absolute. There is nothing in the agreement giving to the defendant an election to take the land or pay the damages, or showing an intention by the parties that the damages should be accepted by the party not in default in satisfaction of his rights under the agreement. The evident intention of the clause was to insure performance by the parties.
The only remaining question arises upon the exception to the ruling of the judge in excluding the evidence offered by the defendant upon the trial. The defendant proposed to prove that the appraisers received proof or representations from Gen. Viele (one of the plaintiffs) of expenses incurred by him in attending the Legislature to lobby against an amendment of the general railroad law which the defendant sought to get passed to enable it to perfect its titles, and that the arbitrators actually allowed some $80 on that account in their award, and allowed the further sum of $500 to indemnify the plaintiffs against the chance that at some future day they might lose the life of a son or child by the engine. The evidence was offered as an entire proposition. It is well settled that if any portion of the testimony so offered is inadmissible, it is not error to reject the proposition containing it, although a part thereof was competent. The question, then, is whether the defendant had the right to prove both facts embraced in the proposition. As to the $80 expended in lobbying, there can be no question. This had nothing whatever to do with the question submitted to the appraisers. It was submitted to them to determine the amount of compensation to be paid by the defendant to the plaintiffs for the land required for the road, and also the damages and costs sustained or to be sustained in consequence of locating and constructing the road. The idea that it was necessary for Viele to visit Albany and expend money in attending the sessions of the Legislature to prevent an amendment of the general railroad law in consequence of the location of the defendant's road through a farm in which *Page 190 he was interested, is absurd. This is the only ground upon which it could be claimed that these expenses were embraced in the submission.
The allowance of $500 as an indemnity for the apprehended death of a child from the engine, I think was unauthorized by the submission. Under the submission the appraisers were to determine the value of the land to be conveyed, and the amount of the damage to the residue of the farm caused by the intersection of the said road. The inquiry as to the damage was, how much the farm was reduced in value thereby. In determining this, they had the right, and it was their duty, to take into consideration all the inconveniences and dangers of cultivating the farm caused by operating the railroad. But I think they had no right to take into the account any other injuries that the plaintiffs might sustain in operating the road. Should a child of the plaintiffs be killed by the engine through the negligence of the defendant, this allowance would constitute no defence. Should it occur through the negligence of the child or its guardian, then the plaintiffs are entitled to no compensation from the defendant. As I understand the submission, the appraisers were clothed with the same powers as commissioners appointed by the court to appraise damages sustained by the taking of land by railroad companies for the purposes of their road. In this case the parties agreed upon the appraisers, and the language used in defining their powers is substantially that of the statute relating to commissioners. It is true the award in this case required no confirmation by the court. The parties provided for the transfer of title by their agreement. They did not confer power upon the appraisers to award concerning injuries that might be received by the plaintiffs through the wrongful act of the defendant in operating their road, nor to compensate the plaintiffs for injuries sustained without its fault. A construction conferring such power is not warranted by the language, and I am satisfied was not the intention of the parties in making the submission. The validity of the appraisal or award in this case is to be determined by the rules governing the award of arbitrators. An award *Page 191 will not be set aside for an error of judgment by the arbitrators, either of fact or law, provided they act in good faith. But when they exceed their jurisdiction, and award upon matters not embraced in the submission, that portion of the award is void. And where the award is entire, and the whole is affected by the excess of jurisdiction, the whole award is void. (Schermerhorn v. Hull, 13 John., 270; Bacon v. Wilber, 1 Cow., 117; Cox v. Jagger, 2 Cow., 638.) Here the award is for an entire sum, and the proposition of the defendant was to show that of the amount some $580 was on account of matters not submitted. The award, if this be true, is void. The defendant had an undoubted right to show that no valid award was made by the appraisers; and I think the facts affirmed, if proved, would show this.
The judgment should be reversed, and a new trial ordered.
SELDEN and STRONG, Js., also dissented.
Judgment affirmed.