Caldwell v. Dickinson

Metcalf, J.

This demurrer cannot be sustained for any of the reasons assigned by the defendant. Neither the condition of the arbitration bond, nor the award of the arbitrators, is expressed in exact terms; but both seem to the court to be reasonably certain. The condition of the bond shows, quite intelligibly, that the parties submitted to the determination of arbitrators the differences between them concerning the plaintiff’s claim to the possession of certain pieces of land, and the withholding of him by the defendant from the possession thereof. These differences were manifestly concerning the true boundary line of their adjoining lands. And the arbitrators determined and awarded where that line should thereafter be; giving a description of that line by metes and bounds, courses and distances. This being done, the defendant was obliged by his bond to give a deed to the plaintiff of the land on the plaintiff’s side of that line, the possession of which land the defendant had withheld from him. But the defendant, though duly requested, has refused to execute a deed to the plaintiff, releasing and quitclaiming that land to him.

The award, in the opinion of the court, decides the matters submitted to the arbitrators, and is final and complete. It is *370not necessary that arbitrators should expressly declare, in an award, that they have decided the matters submitted to them. It is sufficient that this should appear, as it does in the present case, from the contents of the award.

It is clear that this award was made between the parties to the submission, and between them only. The fact was agreed at the argument, that there was a controversy concerning boundary lines of land, not only between the plaintiff and defendant, but also between the defendant and William T. Caldwell, and that these separate controversies were submitted, by separate bonds, to these arbitrators. The recital by the arbitrators, that the plaintiff and William T. Caldwell of the one part, and the defendant of the other part, had submitted their differences, was inaccurate ; but it did not affect the validity of the award, which determines the line between said James Caldwell and Dickinson,” and is silent as to the line between William T. Caldwell and the defendant.

We do not inquire whether the award as to costs is valid or not. Admitting it to be invalid, the other parts of the award may nevertheless be sustained. Maynard v. Frederick, 7 Cush. 252.

The plaintiff, we think, has not a plain, adequate and complete remedy at the common law, for the breach of the condition of the defendant’s bond; but is entitled to maintain this bill. Jones v. Boston Mill Corporation, 4 Pick. 507, and 6 Pick. 148. Hodges v. Saunders, 17 Pick. 470. Demurrer overruled.

The defendant then filed an answer, and a hearing was had at April term 1859 before Dewey, J., who made a report thereof for the consideration of the full court, upon which the case was argued at this term by the same counsel, and so much of which as is material to the understanding of the decision is stated in the opinion by

Hoar, J.

The plaintiff brings this bill in equity to compel the execution of a deed by the defendant to him, in pursuance of an award of arbitrators, which he alleges was made and published by them in December 1857. The submission of the parties was by an agreement which bound them to abide by *371and perform such award as should be “ made and published in writing under the hands ” of the arbitrators named in the agreement, on or before March 1st 1858. The question, whether an award has thus been made and published, obviously meets us at the threshold, in our investigation of the case. It is not the province of a court of equity, any more than of a court of law, to make contracts for parties who come before them. Our only duty and power is to enforce by appropriate remedies the contract which the parties have made. The agreement of the defendant to do something, which he has not done, lies at the foundation of the plaintiff’s claim.

The case reported shows that the arbitrators met and heard the parties, and agreed upon a decision of their respective rights. A paper, intended as the award, was made, and signed and sealed by the arbitrators; and a copy of it, also signed by the arbitrators, was prepared, and delivered by the arbitrators to the parties respectively. But at the time when the arbitrators met the parties, and read the paper to them, and delivered the copies, it was stated by the chairman that he was uncertain whether the paper expressed correctly what they had in fact decided. Their actual decision was verbally stated by him, with the full concurrence of his associates, and the parties were informed that if the written award did not correctly express this decision, it would afterwards be amended to conform to their intended decision, when the mistake should be ascertained by an inquiry of the surveyor. The parties then separated; the chairman soon after learned from the surveyor that he had not correctly stated in the award the line which the arbitrators had actually agreed on; and he amended the sealed copy which he had retained, so as to make it conform to the decision, as he had told the parties he should do. But the paper, thus altered, was never again presented to the other arbitrators for their signature, nor was any further communication made to the parties respecting it.

It is this altered paper which the plaintiff relies upon in his bill as the award which he seeks to enforce. We can see no just ground for determining that this award was ever made in *372writing under the hands of the arbitrators, and published by them. A paper, different in an essential particular, was published, and the parties were informed that the paper thus published was not certainly the award, but that the real award and decision was something else, which was published to them orally and not in writing, and to which they were told the writing would be made to conform. The objection is plain and decisive. When the real award and decision was published to the parties, it was not in writing. After it was put in writing, it was never published. The foundation of the defendant’s agreement to perform an award published in writing was never laid; the condition of it was never performed. The plaintiff, therefore, cannot maintain his suit; because the defendant has made no such agreement as is alleged in the bill. His agreement was not to do whatever the arbitrators might decide, but to do what they should make obligatory upon him by a decision made and promulgated in a manner expressly stipulated.

The plaintiff’s counsel has suggested an amendment, by which he might found his claim upon the writing as it was originally made and published. But we cannot see that this would avail him ; because it is clearly established that that writing did not contain the real decision of the arbitrators, but was made under a mistake, and was only published to the parties with a proviso that it should not be considered as their award, but should be corrected, if the mistake, which was then suspected, should be afterward ascertained. A court of equity could not enforce, as an award, a paper thus erroneous, and thus issued. Bill dismissed.