dissenting. Kandell Hunt having a claim against James E. Zuntz for professional services, agreed with him to submit the matter to arbitration; and they bound themselves to each other in the sum of ten *506thousand dollars to abide by the award, and pay the amount thereof within five days after the decision. -
The submission is in the following words: “Randell Hunt claims from James E. Zuntz, as now due, ten thousand dollars for professional services and advice in the cases of James E. Zuntz vs. W. & H. Stackhouse, and of W. & H. Stackhouse vs. James E. Zuntz. It is agreed by and between Randell Hunt and James E. Zuntz that this claim shall be submitted to Judge J. H. Ilsley and Hon. Thomas J. Semmes, as arbitrators and amicable compounders, with power to them in case of disagreement to select a new person as umpire, whose decision shall be final. The parties hereto bind themselves to abide by such judgment and to pay the amount of the same within five days after judgment is rendered Or decision made, and they mutually bind themselves to each other in the sum of ten thousand dollars liquidated damages, to be paid in case of non-compliance within the time named. It is agreed and understood that the matters at issue are submitted to the above-named arbitrators upon the records and proceedings in these cases, and such other testimony as the parties may offer within-days from this date. The •arbitrators and amicable compounders to have full authority to reject any illegal or improper testimony, and their decision as to the admission <or rejection of the same to be final.
“ In case the parties above named can not agree, Henry C. Miller, Esq., is selected as umpire, and his decision shall be final under the terms of this agreement and submission. And, subject to the conditions therein, he is made umpire and amicable compounder. Affidavits of arbitrators and umpire dispensed with.”
The arbitrators and amicable compounders, after examining the matter, were unable to agree, and the case was referred to Henry 0. Miller, Umpire, who rendered an award of five thousand seven hundred dollars in favor of Randell Hunt. Notice of this award was served upon Zuntz. on the fifteenth of July, 1874. He failed to comply with it, and on the fifth of November this suit was brought to recover the amount of the award, and also the ton thousand dollars, liquidated damages, stipulated in the contract.
Defendant excepted to the suit, and in his answer pleaded the general denial and reiterated the allegations contained in his exception. The allegations of the exception are:
First — The petition does not disclose a cause of action.
Second — The same does not allege that the amicable compounders were sworn as required by law.
Third — The same does not allege a trial before the amicable com-pounders or before the umpire; nor that a time and place were set for trial; nor that notice was given to the parties or their counsel to attend the trial.
*507These objections are fully answered in the written opinion of the judge a quo. The amicable compounders, by agreement, were dispensed from .taking an oath. The umpire took an oath. He gave proper notice to defendant to attend the trial before him, but he did not appear. If defendant had cause to complain that he was not notified to appear before the amicable compounders when they were examining the matter, he -should have made'his objection at the time the case was taken up by the umpire. It would have been a good cause to object to the action of the umpire; the defendant made no objection, however; and if the umpire had made a decision favorable to him we apprehend no objection would now be made to any of the proceedings.
The learned counsel for defendant urges in his brief that the articles of the Revised Code permitting parties to submit their differences to arbitrators and amicable compounders, and making their award final, are repugnant to that provision of the constitution of 1868 vesting the judicial power of the State in the Supreme Court, in district courts, in parish courts, and in justices of the peace. I see no force in this objection. Refore the finding of arbitrators can have the effect of a judgment it must be submitted to the court, and the decree of the court thereon is the judgment.
The important question in the case is: Can the plaintiff recover judgment both for the amount of the award and the amount of the penalty ? “A submission-is-a covenant by which persons who have a lawsuit or difference with one another, name arbitrators to decide the matter and bind themselves reciprocally to perform what shall be arbitrated.” Revised Code 3099. “ It is usual to undergo a penalty of a certain sum of money in the submission, which the person who shall contravene the award, or bring an appeal therefrom, shall be bound to pay the other who is willing to abide by it; but this covenant is not essential, and the •submission may subsist without the-penalty.” Revised Code 3106.
“ The award in order to be put in execution ought to be approved by •the judge; but this formality is only intended to invest the award with a sufficient authority to insure its execution, and pot to submit to the ..judge the examination of its merits, except in case an appeal is brought .before him.” Revised Code 3129.
“ He who is not satisfied with the award may appeal from it, though the parties had renounced such appeal-by the submission; but the appellant before being heard.on his appeal ought to pay the penalty stipulated in the submission, if any-has been stipulated; and this penalty shall •ever be due, though the appellant afterward renounces his appeal; but if he succeeds to have the award reversed, either in whole or in part, the court who shall pronounce on the appeal shall order the repayment of the penalty; but if the award is confirmed the penalty which has been *508paid shall operate no diminution of' the amount of the award.” Revised Code, 3130.
In the case at bar the'defendant has not appealed from the award. He could not do so without paying the penalty. Therefore the correctness' of the award on its merits is not open for revision.
But defendant, however, has contravened the award; and by article /8106, above quoted, he is bound to pay the amount of the penalty to 'plaintiff who is willing to abide by it. That he is bound to pay plaintiff the sum of money stipulated as the penalty for having contravened the ■award there can be' no doubt, if article 3106 of the Revised Code has any meaning, and if parties are bound by their contracts. But the question is, is defendant bound also for the amount of the award which he contravened by refusing to pay ? I think not. The law does not declare the contravention of an award, like an unsuccessful appeal therefrom, shall subject the complainant to the payment both of the penalty and the award.
“ A penal obligation necessarily supposes two distinct contracts ; one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect.” Revised Code 2118.
“The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation.” Revised Code 2124.
“ The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He can not demand the principal and the penalty together, unless the latter he stipulated for the mere delay.” Revised Code 2125.
Was the penalty in the case at bar stipulated as damages for tliemere delay in executing the award ?
I fin’d'no such stipulation in the contract. It is true the parties were bound to comply with the award and pay the amount thereof withinfive days from the decision. But there is no express stipulation that the penalty was merely for damages arising from delay in complying with the award. On the contrary, the penalty was the sum of money which the parties mutually bound themselves to each other to pay for failing to abide by and comply with the award within the time specified in the agreement. Article 2125 of the Revised Code says: “ The penal clause is the compensation for the damages which the creditor sustains by the-non-exécutión of the principal obligation.” It is the equivalent for the discharge of the principal obligation; it is adequate compensation for the non-compliance. It would be manifestly unjust to permit plaintiff to-recover ten thousand dollars, the amount he agreed would be adequate-compensation for hon-compliance with the award by Zuntz, and also to *509recover the amount of the principal obligation; to take both the thing and its equivalent.
When plaintiff recovers judgment for ten thousand dollars he gets all he ever claimed from Zuntz for professional services. Why should he get more ? By the contract of submission he agreed that a penalty of ten thousand dollars would redress the wrong resulting from a default by Zuntz in discharging the principal obligation. Eive days after the award was fixed as the period for making the default. Zuntz contravened the award by not paying the amount thereof within the time stipulated. He then became hable to pay the penalty, the compensation, or the equivalent for the principal obligation. Revised Code 2125. But his non-compliance did not have the effect to make him liable for both the penalty and .the principal obligation. The contract of submission must be read by the light of article 2125 of the Revised Code; indeed, this article must be regarded as a part of the contract. Parties are always presumed to contract with reference to the law. The law permitted them to modify article 2125 by expressly stipulating in the agreement that the penalty ivas merely for delay, and not intended as compensation for damages resulting from the non-execution of the principal obligation, as the law declares. In their convention the parties have not in express terms modified the law, as they might have done; it is a part of the contract, and the court must uphold and enforce it. The parties have fixed the damages at ten'thousand dollars for the non-execution of the principal obligation. When plaintiff recovers this sum he will receive adequate compensation, and the contract of submission will be as fully executed as if Zuntz had paid the principal obligation, the amount awarded by the umpire.
The subject under consideration was very fully discussed by Pothier in his work on Obligations under the title of penal obligations. The learned author says : “ This penalty is stipulated with the intention of indemnifying the creditor for the non-performance of the principal obligation ; it is consequently compensatory of the damages which he suffers from such non-performance. Hence it follows that he ought in this case to ■elect either to claim the execution of the principal obligation or the penalty ; that he ought to be satisfied with one of them ; and that he can not exact both. However, as the penal obligation can not invalidate the principal, if the penalty which the creditor has received for non-performance of the principal obligation is not sufficient indemnification, he may still demand damages resulting from the non-performance of the principal obligation, making an. allowance and deduction for-the penalty which he has already received. But the judge ought not too readily listen to the creditor who pretends that the penalty he has received was not a .sufficient indemnification for the non-performance of the agreement, for *510the parties having by fixing the penalty themselves regulated the damages that may result from the non-performance of the agreement, the-creditor by demanding greater damages seems to act in opposition to an estimation Which he himself has made, and this ought not to be allowed,, at least unless he has proof at hand that the damage sustained by him exceeds the penalty agreed upon. * * * Our rule that the creditor can not, at the same time, have both the principal and the penalty, is subject to an exception, not only when it is expressly said in the penal clause that if the debtor does not accomplish his obligation the penalty shall be incurred and due without prejudice to the principal obligation, but also whenever it appears that the penalty is stipulated for the reparation of what the fereditor may suffer, not from the absolute nonperformance, but merely from the delay in the- execution; for in this case the creditor who'has suffered the delay may take both the principal and the penalty.” Again, the same learned author in discussing the question whether' a debtor may by discharging part - of his obligation partially avoid the penalty' says: “ But if the creditor voluntarily receives a part of the debt, shall he have a right to the whole of the penalty in default of the payment of the residue? Ulpian decides that, although according-to the subtlety of law, it may happen that in this case the penalty is incurred for the whole, nevertheless it is equitable. that it should only be so in proportion to the part of the principal obligation which remains to be discharged. The true reason of this decision is that which is given by Dumoulin, which we have referred to,-viz.:- that the debt being considered as a promise to compensate for the iron-performance of the principal obligation, the creditor can not have both the one and the other; then, when he has been paid a part of what is due upon the principal obligation, he can ho longer be entitled to receive the penalty in respect to that part; otherwise, he would receive .both, which ought not to be.”
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My conclusion is that the penalty of ten thousand dollars is adequate compensation for the non-performance of the principal obligation by Zuntz. It is the liquidated damages which the parties have stipulated for the non-execution of the contract, and the payment thereof discharges the obligation of defendant as fully as if he had executed the principal obligation. And of this conclusion the .litigants will have no cause to complain, because it merely enforces a contract which they voluntarily-entered into. I therefore dissent in this case..
RehearingVefused.