The opinion of the court was delivered by ■
Redfield, Ch. J.In regard to the charge not passed upon by the arbitrator, there can be no doubt of plaintiff’s right to recover. And, as he wished to try the effect of the award and note upon the whole account, he must have brought an action, upon the whole account, which he could only do at the county court, so that most obviously that court had jurisdiction of the case, and the plaintiff is entitled to recover the $3,20, in this action.
*636In regard to the effect o f the arbitration and the execution of the note and acceptance and collecting of it, by the plaintiff, there is perhaps more difficulty. The arbitration seems to have been an ordinary parol submission, in the first instance, and the parties were bound to know that the legal consequence would follow an award, that it would bar the matters discussed and determined.
It would scarcely be allowable to avoid the effect of an award of arbitrators, by showing that the parties did not know, that by law it was conclusive, upon the matters passed upon, by the arbitrator. And showing that they were told, and believed it would not be, is much the same thing, unless we can fairly say, that under the circumstances, the parties did not intend a submission, and award, in the common sense of these terms, but only to have thé person, look over the accounts and help them settle.
In regard to the execution and delivery of the note and receiving payment of the same, it undoubtedly has a strong tendency to show that the parties acquiesced, in the award, as final. But taken alone, aside from the submission and award, it could scarcely amount to a conclusive settlement of the account. For the plaintiff protested, at the time, that he would not take the note, in full satisfaction of the balance due, but only as far as it went, and would sue for the balance. This part of the case must turn mainly, upon the effect of the submission and award, and the acquiescence of the parties, in its finality.
Our examination, and reflection upon this case, satisfies us, that the award should be held final, to the extent of the matters passed upon. It seems to have been an ordinary submission and award, with this difference only, that the arbitrator expressed an opinion when called upon to make the settlement, that it would not be conclusive upon the parties, unless the submission were reduced to writing. The parties nevertheless requested him to proceed, and determine the balance, and he did, and the auditor states, as an inference it would seem probable, that the parties supposed, after the advice of the arbitrator, that the award would not be legally binding upon them. There is nothing in the case tending to show that they did not agree to abide the settlement, but the contrary, for defendant was to give his note, for the balance, and plaintiff to accept it, which was indeed done, but finally under protest. There is nothing to raise any doubt, that until the award was made, both *637parties expected, and intended, to abide the award, supposing, to be sure, that the arbitrator knew the law, and that they were not legally hound to abide it.
The case seems to me, in principle, not very different from that of any other contract, where the party understandingly assumes, in terms, an obligation upon himself, but in a form, which he supposes, at the time, upon good advice, if you please, the law will not enforce. A case, which is quite supposable to occur; one agrees to purchase land, at a given price, and takes possession and proceeds to make valuable improvements both parties to the contract supposing the statute will not allow such contract to be enforced, not knowing that equity, after a substantial part performance, will enforce such contracts, but each relying upon the contract, and the good faith of the other party to perform it; could it be fairly argued that such a case differs from the ordinary case. Or, we may suppose that a party agrees to give more than personal property is fairly worth, not supposing he is bound by the stipulation. Or in receipting property, attached on mesne process, a price is affixed in the receipt neither party supposing it to be conclusive, or in settling a controversy a note is given for the supposed balance, both parties believing the matter subject to farther revision. Shall such mistakes of the law affect the rights of the parties ? It really seems to me they cannot, unless all mistakes of law are to avail the party in excuse, which is certainly not the law, upon the subject.
The best construction I have been able to give this portion of the case inclines me to believe, the award must be held conclusive, of all matters passed upon by the arbitrator, notwithstanding the misapprehension of the parties in regard to the law. This portion of the case is, I think, really decided, by that of Howard v. Puffer, 23 Vt. 365, where it is held, that it is no sufficient ground of setting aside an award, by a court of equity, that one of the parties, without any mistake, as to the facts, misapprehended one of the legal consequences of the award, and that, the most important of all its effects, to wit, settling the title of the land in dispute.
Judgment reversed, and judgment on report for $3,20, and interest from the time of the report being made.