The replication has been amended in the respect in which it was held to be defective when this cause was before us on a former occasion, (a) The plaintiff now avers that the arbitrators did award how much had been paid, and injustice should be applied on the contract mentioned in the pleadings. • It is objected by the defendant’s counsel, that the replication does not state in express terms, how much had been paid at the date of the bonds of submission. But it must be admitted that the replication is as certain in this respect as the language of the submission itself, or of the plea of the defendant. They all refer to the date of the execution of the bonds, as the time up to which the aggregate amount of payments on the contract should be determined. And such is the true construction of the replication.
One ground of the demurrer is based on the proposition that the replication departs from the declaration. This is a ground of general ¿emurver, and is fatal, provided the finding of a divided award, or rather an award as to the amount that had been paid on the contract, endorsed on the contract itself, and the award as to the sum to be recovered by the plaintiff, executed as a separate instrument, is incompatible with the terms of the submission, and with the allegations contained in the declaration.
Looking at the language of the submission, as contained and set forth in the special plea of the defendant, notwithstanding the awkward and inartificial manner in which the bonds were drawn, it is quite clear that the arbitrators were to hear evidence upon, and determine, two matters; and that unless they awarded upon both, the award as to the one would be void, for the reasons given when the case was before us at a previous term. But if they did pass upon both matters, and execute a valid award upon each, I incline to the opinion that their finding should not be held void, for the reason that the result of their labors was embodied in two instruments, in the form of two awards, the one of which was endorsed upon the contract
In the view I have taken of the subject, the question of a departure is avoided. The award as to the amount due on the contract was not an award of a sum due, constituting a substantive ground of action. It was only a condition precedent to the right to maintain an action for the amount awarded to the plaintiff-under the other branch of the submission. And if I am right in supposing that the decision of the arbitrators on the first point could be contained in and proved by a separate instrument, then the question of a departure does not arise.
The question as to the manner in which the replication should be concluded, whether with a verification, or to the country, is left in some doubt by the authorities. But that is only a formal defect, and is cured by the 151st section of the code; which declares that all errors and defects in the pleadings which do not affect the substantial rights of the parties, shall be disregarded in every stage of the cause. This provision extends the statute of jeofails, which was applied under the revised statutes only after verdict or judgment, to every stage of a suit, and has been expressly declared applicable to existing suits by the 2d section of the supplemental code. And in this case the pleadings, upon which we are called to decide, have been put in since the code became the law of the land.
The demurrer must be overruled, and the defendant allowed to amend on payment of costs.