The opinion of the court was delivered by
Kellogg, J.This was an action of assumpsit upon an award of arbitrators. At the trial below the defendants objected to the admission of the submission and award, upon the ground of variance from the declaration, and for various 'other causes, apparent upon the submission and award; which objections were overruled.
It is now urged, that the submission is void for uncertainty, in not specifying with more precision the matters submitted to the ar*137bitrators. The first paragraph of the submission recites, that a suit at law was pending between the parties to this suit, and then the agreement proceeds to submit “the said case” to the decision of the arbitrators therein named. The papers in the case show, that, at the time of the making of the submission, there was a suit pending between the parties, in which Rixford and Jones were plaintiffs and Nye and Frost were defendants, which suit, in the absence of proof showing the pendency of any other suit between the parties, must be intended as the case referred to in the submission and as containing the subject matter of the submission. This, we think, renders the submission sufficiently definite and certain.
It is also urged, that the award is void, for the reason that it does not, in terms, direct the suit at law, which was the subject of the submission, to be discontinued. The legal effect of the submission and the making an award pursuant to the submission was, to put an end to the suit. The parties so understood it and acted accordingly. The suit was discontinued by an entry upon the files, “Settled by arbitration, by agreement of the parties, April 28, 1845,” — the day upon which the award was made. It was not necessary to the validity of the award, that it should direct the discontinuance of the suit. This exception, therefore, is not sustained.
It is farther objected, that the award is void, for the reason that the arbitrators do not tax certain costs, but, by the terms of the award, leave them to be taxed by the parties. This objection, however, can only avail the party, so far as it relates to the costs referred to in the award; and if the party seeking to enforce the same waive his claim to these costs, it cannot affect the other parts of the award. For all purposes, except the costs, the award may be good. An award may be good in part and bad in part. Caldwell on Arbitrations 120. Fox v. Smith, 2 Wilson 267. Addison v. Gray, Ib. 293. In the cases above cited the awards contained directions respecting costs, which were considered too loose to be supported; but the other parts of the awards were sustained.
It is farther insisted in argument, that there is a variance between the award and the submission, and that therefore the entire award should be held void. The submission, as has been before remarked, was of the suit then depending between the parties. The suit was to recover the first instalment due upon a certain contract, which *138the parties had previously entered into; and as the declaration counted upon the entire contract, and, in order to ascertain whether the plaintiffs were entitled to recover this instalment, there must necessarily have been a consideration of the entire contract, it may well be questioned, whether it was not the intention of the parties to submit the whole contract to the decision and award of the arbitrators. And if such was the intention of the parties, and the same is apparent upon the submission, it should receive such construction, as would render effectual that intention. But it is not necessary tO' decide this question in disposing of the present case. For if it be conceded, that the arbitrators, in awarding upon the two last instalments, exceeded their authority, still, if there is enough found in the award, which is well awarded, to sustain the present suit, it will be sufficient for the present purpose. The amount awarded is seventy five dollars, which is the amount of the contract, to be paid in three instalments of twenty five dollars each, the first to be paid in sixty days from the date of the award, twenty five dollars to be paid in the month of October then next, and twenty five, dollars in the month of October, 1846.
It is evident, that the award embraces the entire contract, and directs the payments to be made by instalments, corresponding with the contract set forth in the declaration in the original suit. The award finds, that the defendants “assumed in manner and form ” as the plaintiffs had alleged in the suit; and it awards to the plaintiffs the sum of twenty five dollars, to be paid in sixty days, and the costs which had accrued in the suit. This was the subject matter of the suit; and it is conceded, that the suit was submitted to the arbitrators. To the extent, then, of the first payment, directed by the arbitrators, the award was within and pursuant to the submission, and to this extent was clearly a valid award.
But it is said, that it does not appear, that the sum awarded to be paid within sixty days, was for the first instalment of the contract, which was the matter embraced in the original suit, — that it may have been for the second, or third, instalment, — and if so, it was not within the submission. Every reasonable intendment is to be made in favor of the award; and it is a maxim of courts of law and equity, not to raise pres7imptions for the purpose of overturning an award; but, on the contrary, to make every reasonable intend*139ment in its support. Caldwell 123. Awards are to be liberally construed, according to the intent of the parties. Thus, if, by manifest implication, that appear, which, if positively expressed, would render the award good, that is sufficient to support it. Applying these rules of interpretation to the award, submission and contract, we think it sufficiently appears, that the sum, directed by the award to be paid in sixty days, was for the first instalment of the contract, and consequently is clearly within the submission.
It is farther insisted, that the award is invalid for want of publication. The submission was made on the twenty sixth of March, 1845; and the case shows, that the award was made on the twenty eighth of April, 1845, and delivered to the plaintiffs on the day following ; which was within the time limited by the submission. This was a sufficient publication of the award.
It is farther objected to the validity of the award, that it does not appear by the award, that Shedd, one of the arbitrators, was present at the hearing, or notified to attend. The terms of the submission clearly authorize an award by a majority of the arbitrators; but to make it valid, all must be present at the hearing. It is not denied in the argument, but that all the arbitrators were present and acted upon that occasion, (indeed it is so admitted,) but the objection is, that the fact does not appear upon the face of the award. We do not think it essential to the validity of the award, that this fact should appear upon the award. It is sufficient, if the fact exists; and, if denied, its existence may be proved, like any other fact, The exception is untenable.
The result, then, is, that we discover no error in the judgment of the county court, and the same is therefore affirmed.