The opinion of the Court was drawn up by
Cutting, J.The writ, dated Feb. 10th, 1859, discloses "an action of assumpsit, upon.an account annexed, with general money and labor counts.”
The most prominent question presented, is, whether the plaintiif can recover in that form of action.
It appears that, in 1853, the parties entered into a verbal •contract, (they never having executed the draft for contract) by which the plaintiif was to do all the work and, in every respect, complete the road bed of the Buckfield Branch Railroad, from the depot, in Buckfield, to the Androscoggin river, at Canton point, with certain exceptions not necessary here to mention; that, subsequently, the plaintiff fulfilled the contract in full or in part, and that certain controversies and disagreements arose between the parties, as to the character of the labor performed, and its value, &c.; that after-wards, on July 3d, 1854, by an agreement, executed under their hands and seals, the subject matters in dispute were referred to Asa P. Robinson, Esq., whose award, on its rendition, was to "be executed by each party to the other”; that Robinson heard the parties, and, without arriving at any definite conclusion, reported to each his views upon the evidence submitted, together with such facts as were within *243his own personal knowledge, for the purpose, as he says, of producing an amicable settlement; concluding his primary report as follows, viz. : — "Having thus far analyzed this difference and expressed my opinions fairly and frankly, and impartially, upon the principles which would govern me in deciding the matter, I deem it but proper to send it hack to the parties for their consideration, in the hope they may be able to agree without further reference to me, but, if knowing my opinions as above expessed, they still insist' upon resubmitting to me for a decision, I am ready to go further.”
And the arbitrator further states, that — "On the 15th day of April, (1856,) the foregoing report was by consent delivered to the parties personally, and, on the 16th, resubmitted to me, for further determination,” by agreement of the parties, as follows: —
"1st. Let Mr. Robinson decide, upon the knowledge he has of the agreement and intentions of the parties, as reported by him, what, if any, valuation should be made in the cash price for the work, not including profits, from that originally inserted by him in the draft for contract, and on the admission that payments are made in cash as fast as estimates are furnished.
" 2d. What, if any, enlargement of the quantities reported by Stephenson, of rock and loose rock and earth should be made, and upon what evidence in error in Stephenson’s report.
" 3d. What the quantities found, on the prices decided on, amounts to, to be accounted for by Smith to Ilolmes, leaving them to adjust and apply the payments made.”
And it further appears that, upon the authority thus conferred, the arbitrator made his final report, which was the basis of the verdict rendered, the Judge ruling, as the plaintiff contended, that it was final and conclusive, subject only to be impeached for fraud.
Upon the foregoing statement in brief, abstracted from the voluminous documents presented, we are to determine *244whether the present action of assumpsit, on the general counts can be maintained against the seasonable objection of the defendant.
Except for the intervention of the* special agreement, to refer, an action of assumpsit would lie, but that specialty, having created a superior security, suspends the inferior during its continuance. An action of assumpsit will not lie on a covenant of seizin in a deed, to recover money paid; or on the breach of the poor debtor’s bond; or on an original promise after the same has ripened into a judgment. It is well understood by all accurate pleaders, that an original cause of action may be merged in one of a higher nature or degree, otherwise two suits might be maintained and judgments recovered on the same original claim. Without further remarks as to the expediency of the right form of action, we refer the inquisitive mind to the case of Richards v. Killam, 10 Mass., 243.
• Had an action for covenant brohen been brought on the special agreement to refer and abide, we perceive no sufficient reason why the plaintiff should not have recovered in damages as awarded, provided the award was final and conclusive, as ruled by the Judge; otherwise exceptions were well taken in that particular.
The true rule as to the form of the action, disclosed by the authorities, is this: — "If the submission be by bond, the prevailing party may have an action of debt on the bond; if by other deed, he may have covenant; if by instrument not under seal, or by parol, he may have assumpsit on the submission.” 2 Petersdorff’s Abr., 219, note.
But it may be remarked that we do not understand the plaintiff’s counsel to contend against the force of many of the preceding propositions. Their' first proposition is that, "where matters of account in dispute are submitted to arbitration, but not by bond, and the arbitrator made an award, the plaintiff may give the sum awarded in evidence on the common counts in assumpsit without a special count, though the sum has been given in under a Judge’s order,” — citing *245Keen v. Balshore, 1 Esp. R., 194. We are under no necessity of questioning that ancient authority, for it is not in conflict with any modern principle or rule of law. A simple award without an antecedent bond, or a special agreement, or "other deed” to abide, can be considered no more than an assessment of damages preliminary to the commencement of the action, which would in no way affect or destroy the original eause. And the question still returns, was the contract to refer, a simple or special one?
Secondly, it is contended that the agreement to refer was a simple contract, for, say the counsel, "the written agreement of the parties under seal was modified by a subsequent agreement not under seal.” Thus reducing the special to a simple contract on which the prevailing party may have assumpsit. Can such a proposition be sustained by the evidence ?
It appears that the document embracing the submission, and modification (so called) and the award, was introduced by the plaintiff under rulings, if the case is correctly reported, somewhat objectionable; for the whole history relating to the contracts and the prior proceedings of the parties is proved secondarily by the report of the arbitrator. But being now before us, they are to receive a construction. And no one, after reading the arbitrator’s report and final award, can arrive at any conclusion other than that his jurisdiction was conferred by the special agreement of the parties, and that the "resubmitting” was for the express purpose of enabling the arbitrator " to go further” and decide upon his own personal knowledge as communicated to them respectively. The subsequent modification, if any, was as to the matter of evidence, rather than as to any deviation from the parties’ original intention of having the controversy adjudicated and settled, with, perhaps, this exception, "leaving them to adjust and apply the payments made.”
The term modification, as used by the plaintiff’s counsel, may have been very appropriate, but, at the same time, suicidal, for a contract modified still remains in force, subject *246to the modification, whereas, nothing short of a rescission would answer the plaintiff’s purpose.
It is further contended that the award was incomplete, inasmuch as it does not settle the whole controversy so that an action of debt or covenant could be brought upon it. But in our opinion the award did settle the whole controversy, if the subsequent rulings of the Judge were correct, subject only to be reduced by the defendant in either form of action, on the original agreement to refer and abide, by showing his payments. But we do not understand that if the award had been perfect in every particular, that either an action of debt or covenant broken, would lie based on the award itself, to enforce its performance. . It was not a judgment, and it possessed in itself no germinating element ; the germ was in the agreement to perform,’ which, if by a specialty, might disclose itself in an action of covenant broken, if by parol or a simple contract, in assumpsit. Hence, we recognize the harmony and the justice of the rule before cited as embracing the whole law upon this subject*. So has it been determined heretofore. Bowes v. French, 11 Maine, 182; Tullis v. Sewall, 3 Ham., (Ohio,) 510. Exceptions sustained.— Verdict set
aside, — and a new trial granted.
Tenney, C. J., and Appleton, May and Goodenow, JJ., concurred.