We are of opinion that the award is sufficiently certain to be understood that the money awarded was in satisfaction for the horse, which was the only matter in controversy mentioned in the submission and that on a recovery in this action, the Plaintiff will be barred from maintaining any other action respecting the subject submitted. Therefore that the award is sufficient and that judgment should be entered for the Plaintiff.
Bryant v. Milner, 1 N.C. 313, 1 Cam. & Nor. 313 (1801)
June 1801
·
North Carolina Court of Conference
1 N.C. 313, 1 Cam. & Nor. 313
James Bryant vs. James Milner.
The Plaintiff brought an Action of Debt in the County Court of Person, upon an award, and declared in the following manner, to wit: James Bryant complains of James Milner, in custody, &c. of a plea that he render unto him sixty dollars, of the value of thirty pounds, which to him he owes and from him detains: For that whereas a certain controversy had arisen and existed, between the said James Bryant and the said James Milner, of and concerning a horse which the said Bryant had lent to the said Milner, and the said Milner had not returned to the said Bryant; they the said Bryant and Milner being willing to settle and determine the said controversy in an amicable and friendly manner, on the seventh day of September, in the year one thousand seven hundred and ninety-nine, in the county of Person aforesaid, submitted the said controversy to the arbitrament and award of James Cochran, David Mitchell, Drury Jones, William Mitchell and Wilson Jones, Arbitrators mutually chosen and agreed upon, by the said Bryant and Milner; and they the said James Cochran, David Mitchell, Drury Jones, William, Mitchell and Wilson Jones, being so chosen and appointed arbitrators as aforesaid, then and there undertook to hear and determine the matter of controversy aforesaid, so existing between the said Bryant and Milner; and having heard the allegations and evidence of the said parties, of and touching the said matter of controversy, they the said James Cochran, David Mitchell, Drury Jones, William Mitchell and Wilson Jones, Arbitrators as aforesaid, then and there did erbitrate, settle and determine the said matter of controversy, and then and there render*314ed, under their hands and seals, their award of and upon the same matter of controversy in the words and figures following, to wit: ' We the subscribers, having been chosen to arbitrate a certain matter of controversy between James Milner, of the one part, and James Bryant, of the other part, do award, that the said Milner shall pay unto the said Bryant sixty dollars, or secure the same to be paid, on or before Christmas next, by giving his bond with security. Given under our hands and seals this seventh day of September, 1799 ;" whereof the said Milner then and there had notice. By force of which award the said James Milner became indebted to, and liable to pay the said James Bryant, the aforesaid sum of sixty dollars, or secure the same to be paid, on or before Christmas then next following the date of the said award: And the said James Bryant faith that the aforesaid sum of sixty dollars is of the value of thirty pounds current money of this State.” Yet the said James Milner, &c." The Defendants pleaded the general issue, no submission, and that the arbitrators proceeded ex parte and partially; " on which issues were joined.
The Plaintiff having appealed from a judgment against him in the County Court, the cause was tried m the Superior Court for Hillsborough district, at April Term, 1801, when the Jury found a verdict for the Plaintiff, but subject to the opinion of the Court on this question, “Whether the award as declared on, was sufficient to enable the Plaintiff to recover." And thereupon the cause was transmitted to this Court.
Norwood for the Plaintiff—
Courts anciently considered awards as judgments, and construed them strictly, without attending at all to the *315intention of the arbitrators, unless expressly stated in the award, Kid on Awards, 154. Brownl. 92. Yelv. 98. This rule of construction produced great mischief, and rendered injurious that method of settling controversies, which would otherwise have been of great utility to the community. The Judges, therefore, in the latter end of the reign of James I. departed from this rule, and adopted one more liberal and more conducive to justice, holding that awards should be interpreted liberally, as contracts, according to the intention of the parties, and of the arbitrators. Kvd on Aw. 155, 156. Awards ought to be liberally construed, because made by Judges of the parties own choosing. 1 Bur. 277. Under this rule, awards made on parol submissions, ought to be interpreted as verbal agreements. An award, tho' under seal, is not a specialty; and is made on a parol submission, is of the same nature with the submission, and ought to be construed by the same rules. 1 Bur. 279, 281. In an action of debt upon an award, made under a parol submission, the Plaintiff may by averment connect the award with the submission, and thereby cure a defect, which otherwise would have been fatal 1 Bur. 274, 278. 279. Allen 51, 52. 1 Wils. 58. If an award recites the controversy, and orders a sum of money to be paid, it shall be intended in satisfaction of that controversy, and the award held good. Kid on Aw. 152, 153, 150, 148, 149. Com. Rep. 328. If the award is not made on the submission, or there is any other objection to the award, the defendant must shew it by plea; for the Court will not presume any thing which will destroy the award, but will presume that no such circumstance did exist. Wilson 163. 2 Mod. 227. 1 Bur. 277. 2 Cro. 663. In debt on an award, the Plaintiff need not shew any *316thing more than the submission ; that the arbitrators acted; that they made an award on the matter submitted ; the amount of the award ; that the defendant had notice of the award ; and a breach by the defendant. Kid 198. 1 Bur. 881. 1 Salk. 72. When an award is annexed to the submission by a proper averment, either in a declaration or plea, all the material facts are put upon the record, in as full and conclusive a manner, as if the matter submitted had been mentioned in the award. Com. Rep. 330.
In this case, the declaration states a submission by the parties of a controversy relative to a horse ; that the arbitrators acted under that submission, and made an award of the controversy so submitted ; that the defendant had notice of the award ; and assigns a breach. I therefore contend that judgment ought to be given for the Plaintiff.
But suppose I should admit that no authority has been cited which comes up to the case, the plaintiff would, on principle, be entitled to judgment. For the books referred to, incontestibly prove, that the Judges in England, having observed the inconvenience and injustice of the ancient rules governing the construction of awards, have from time to time so changed and amended those rules, as to render them more conducive to justice and the good of the community. The entire change of the rule in the time of James the first, and many decisions made since that time in support of awards, evidence the authority of the court in such cases, and hold forth an example worthy of imitation, when good policy and justice require an extension of the present rule. In this case the only objection to the award is, that the controversy submitted and settled, is not *317identified by the award itself; and it will be contended the award cannot be supported by an averment of that fact. I cannot see what inconvenience or injustice would result from permitting such an averment, particularly in support of awards made on parol submissions ; because it might be done in a plea as well as in a declaration, and therefore mutually beneficial to the parties; and the judgment in such cases would be conclusive, and might be pleaded in a subsequent suit on the original cause of action. In many other cases, it is not only permitted, but is absolutely necessary to support the principal matter of declarations and pleas by proper averments. Thus, in pleading a former judgment, the defendant must aver, that it was given on the same cause of action; and in pleading a release of all demands, the defendant must aver the demand on which he is sued, existed before the execution of the release; these two cases appear to me much stronger than the one before the court. In one instance a record, and in the other a deed is supported, and made to apply in a particular manner, by the averment of a fact not appearing on the face of them ; the present case is a parol transaction, and therefore certainly more open to averments. It is a good policy to render as easy and certain as possible, this amicable and cheap method of settling disputes.
Haywood for the Defendant—
The award is not certain or final; no particular controversy is recited; no release is awarded; nor is the money directed to be paid in satisfaction of specified injury or demand. It is not mutual, because it does not discharge any cause of action, and as it cannot be supported by averment, leaves the defendant exposed to a suit on the original contro*318versy 1 Bur. 274. 2 Stra. 1024. 2 Bur. 7011 1 Salkeld 69.