
    Thomas Williams vs. Andrew J. Williams.
    While an award without a submission is not valid, yet if in an action upon an award the circuit court excludes the submission, but admits the award in evidence; and in the course of the trial one of the arbitrators proves that after the atvaid was made and delivered to the plaintiff, he presented it to the defendant, who said that he would settle the matter and pay the money awarded; it was held, that the defendant thereby admitted the authority of the arbitrators, and afforded sufficient evidence of a submission to sustain the award.
    
      It. is no objection to an award that it directs a parlicular debt to be paid by one of the parties, to the other, provided it could not be collected from another source ; if at the time of suit upon the award, the defendant to whom the debt was to be paid had failed to collect this debt from the other source, he might claim a credit for the amount against the plaintiff; or if he had not yet ascertained whether he could collect it from the other source, he might, ' when that fact was ascertained in the negative, sue the plaintiff afterwards for it.
    The statute (How. & Hutch. 590, sec. 6) which requires a bill of particulars to be filed, applies only to actions of assumpsit; it is therefore no objection to the introduction of evidence in an action of debt, that no bill of particulars was filed.
    It is no objection to a verdict, that it is for more than the amount indorsed on the writ, if it correspond with the amount claimed in the declaration.
    In error from the circuit court of De Soto comity; Hon. Hugh R. Miller, judge.
    Andrew J. Williams sued Thomas Williams, and filed against him a declaration in debt, containing three counts; the first on the following award, viz :
    “ Oct. 10, 1843. The undersigned arbitrators chosen by A. J. Williams and Thomas Williams to settle all matters of controversy between them, having examined the papers, find the sum of $ 167-77-J due from Thomas Williams to A. J. Williams, and the cost of suit to be paid by A. J. Williams. We further find the sum of $41-66 due to Thomas Williams, which sum if he fails (after a proper effort) to collect from the estate of William H. Coleman, deceased, is to be paid by A. J. Williams.
    J. A. Wooten, W. H. Renfroe, James Hunter, Mitchell E. Jackson, Arbitrators.’
    The second, the insimul computassent; and the third, for money had and received. The amount indorsed on the writ was §67-77. The amount of damages demanded in the body of the writ was $100. The declaration in the commencement of it alleged the indebtedness to be $167-77; and in the conclusion the damages for its detention to be $ 100. No bill of particulars was filed. The defendant pleaded nil debet, and a further plea denying the submission to arbitration, by the parties as alleged in the declaration. On these pleas, issues were made up, and the case submitted to a jury.
    On the trial, the defendant moved the court to exclude from the jury as evidence, the agreement of submission, under the hands and seals of the parties, and the award which the plaintiff proposed to introduce in support of his action. The court .excluded the agreement of submission, but admitted the award in evidence.
    The plaintiff then introduced a witness, who proved that, at the request of the plaintiff, he had taken to the defendant the paper purporting to be the award, and that the defendant then said “ that he would settle the matter, and pay the money, and be done with the business.”
    The agreement of submission having been excluded, on motion of defendant, the court charged .the jury, “that without proof of a submission between the parties, such as the declaration describes, they must find for the defendant on the first ■count.”
    And then, on motion of the plaintiffs, the court gave to the jury the further instruction, “that if they believed from the testimony that tike defendant, after the making of the award, promised to pay the amount awarded to the plaintiff unconditionally, the plaintiff can recover on such promise, although the award may not be valid.”
    The jury found for the plaintiff “the sum of $167-77J, the debt in the declaration mentioned, and also the sum of $>3(H9, damages for the detention of said debt.”
    The defendant moved the court to set aside the said verdict, and grant him a new trial on two grounds:
    1. The misdirection of the court as to the law in the charge given on behalf of the defendant; and,
    
      2. That the verdict was contrary to law and evidence. This motion being overruled, the defendant prosecuted his writ of error.
    
      Lucas, Watson, and Clapp, for plaintiff in error.
    1. The plea of nil debet, put in issue the whole declaration. 1 Saunders on PL and Ev. marginal paging 181; 2 Chitty’s Rep. 40. Though the first count in the declaration was demur-rable, and the defendant failed to demur, still, to sustain it, and authorize a verdict in his favor, the plaintiff was bound to make out a good case by legal testimony. See 6 S. & M. 89.
    2. The agreement of submission was properly excluded.
    
    3. But the submission having been properly excluded, the award should likewise have been excluded. Smith v. Cross-white, 5 Humph. 69; Hand v. Pres. & Selectmen of Columbus, 4 S. & M. 203.
    4. The award should have been excluded upon the farther ground, that it was void; because upon its face it was neither certain nor final. The object of the submission was a termination of controversy and litigation between the parties; with what was due from Coleman’s estate to Thomas Williams, the arbitrators had nothing to do; and besides, by whom was the character of this effort to be determined! It is thus- seen that the said alleged award was neither certain nor final. 9 Metcalf, 164, 170; 3 Bingham, N. C. 874; Kidd on Awards, 194, 198, 208; Camochan & Mitchell v. Christie & another, 11 Wheat. 446; Pedley v. Goddard, 7 Term Rep. 73; Gibson v. Powell, 5 S. & M. 712.
    The first count being upon an alleged award, the instruction of the court given on behalf of the plaintiff could only have had reference to the other counts in the declaration, and as to these was wrong; —
    1. Because there was no account filed with the declaration, and consequently the plaintiff had no right to rely upon either the first or the second count. How. & Hutch. 590, sec. 6. That the statute applies to the insimul■ computassent, as well as to the third count, see 3 How. 46-53.
    2. Because the damages laid in the writ and declaration were not sufficient to cover the amount which the court said the plaintiff had a right to recover, if the defendant had unconditionally promised to pay it. Potter and others v. Prescott, 2 How. 686.
    3. Because the submission having been by deed, the award could not be used under a count in assumpsit. 2 Philips on Evid. 124; 1 Chitty on Plead. 308.
    4. The verdict cannot be sustained under either the second or third counts, because it does not sound in damages, (6 How. 193,) and is not responsive to the issue made up under any count but the first. A substantial response to all the issues is indispensable. 1 Rob. Praci 355 ; 2 How. & Munf. 286 ; and 4 Munf. 492.
    The verdict was not supported by testimony, even upon the supposition that the pleadings in the case had all been proper.
    1. The testimony of the witness was not sufficient to prove an account stated, or to bind the defendant as an assumpsit. The admission was nothing more than the declaration of a purpose then formed by the plaintiff to rid himself of a claim or difficulty by paying a sum of money, and cannot be construed into an admission that the amount was really due from him. The authorities are concurrent, that the admission to charge the defendant on an account stated, “must be posilive, unqualified, and unconditional.” Chitty on Cont. (Perk, ed.) 652; 2 Philips on Evid. 122; Evans v. Verity, 1 Ryan & Mood. 239; 21 Cond. Eng. Com. Law Rep. 427.
    2. The evidence to sustain an assumpsit is insufficient, for the farther reason, because it mentions no particular sum. Did the defendant propose to pay the whole amount of the award, or was it his purpose to claim a credit for the amount the award found due him? 2 Car. & Payne, 109; 12 Eng. Com. Law Rep. 49 ; 1 Moody & Malkin, 183; 22 Eng. Com. Law Rep. 285.
    3. The testimony on this point was insufficient to prove an account stated, because it was but a declaration to a third person. The witness was the agent for the plaintiff, but for the single object of taking to the defendant the award. He was not authorized to settle the matter, or to receive the money. See 
      Breclcon v. Smith, 1 Adolph. & Ellis, 488 ; 28 Eng. Com. Law Rep. 125.
    
      McNutt and Paxton, after arguing that the submission was improperly rejected, contended,
    1. That its improper rejection, at the instance of the plaintiff in error, would not necessarily carry with it the award; so to hold would justify the defendant in taking advantage of an error of the court below, committed at his own instance.
    2. The subsequent ratification of the award made it obligatory, even though the arbitrators acted wholly without authority. See Hand v. President and Selectmen of Columbus, 4 S. & M. 203.
    3. The award connected with the subsequent promise by the defendant, was admissible as evidence under the second and third counts. 5 S. & M. 712.
    4. It is insisted, however, that the award was void for uncertainty. No such objection was made to it by the defendant when he promised to pay the amounts awarded against him; and however indefinite the award may be as to the item of $41-66, it is abundantly certain as to the sum for which the suit was brought. If the plaintiff chose to abandon his claim for that item, it is so much gain to the defendant, and he cannot thereby have cause to refuse the performance of the residue of the award for which the suit is brought, and which is abundantly certain. Besides, his subsequent promise waived all objections to the award!
    5. It is further objected, that the instruction given on behalf of the plaintiffs, as applicable to the second and third counts, was wrong; 1st. Because no bill of particulars was filed. 2d. Because the damages laid in the declaration were not sufficient to cover the amount of the award. 3d. Because the submission was by deed. 4th. Because the verdict does not sound in damages.
    These objections are based on the mistaken apprehension that the second and third counts are in assumpsit; whereas they are in debt, and consistent with the first count. The statute referred to on behalf of the plaintiff in error, requires a bill of particulars in actions of assumpsit only. Besides, the first count, and the award therein set forth, were an abundant bill of particulars to justify the admission of the proof under the second and third counts, and no objection was made on this ground in the court below. Such being the case, the plaintiff in error will not be sustained in making it here.
    6. If the second and third counts were in assumpsit, as the plaintiff in error now contends, we should have been met with a demurrer in the court below, and not with the irresponsive plea of nil debet; and if he is now right in his position, the second and third counts are not met by any plea, and the plaintiff was entitled to a judgment by a default.
    7. The testimony of Williams, that, upon notice to the defendant of the amount awarded against him, he promised to pay it, was amply sufficient to justify the verdict.
    
      
       The arguments on this point are omitted, as the court did not decide whether the submission was or not properly excluded. R.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt, founded upon an award not under seal. There was a special count, as well as several common counts, in the declaration. Exceptions were taken during the trial to the admission o-f evidence, and afterwards to the action of the court in overruling a motion for a new trial. There was a judgment for the plaintiff.

At the instance of the plaintiff in error, the defendant in the court below, the court excluded the argument of submission to arbitrators from the jury, but allowed the award to be read. No excepticm was taken to the exclusion of the agreement of reference, but the admission of the award was made the ground of exception.

An award without a submission, is not valid. And it must be in accordance with the terms of, the submission, and not extend to subjects or parties not submitted, and must be certain and mutual. Hand v. Columbus, 4 S. & M. 203; Gibson v. Powell, 5 S. & M. 712.

This award is not deficient in certainty or mutuality. But the articles of submission are excluded; and if the case stood upon this alone, it would be impossible to sustain the judgment. But it was in proof by one of the arbitrators, that after the award was made and delivered to the plaintiff, he presented it to the defendant, who said that he would settle the matter, and pay the money and be done with the business.” This recognition of the authority of the arbitrators, and expressed determination to acquiesce in their decision, binds the defendant as fully as a previous submission would have done. It fully sustains the verdict, and may be regarded as evidence of a submission.

The objections to the award itself are not tenable. It is true that it directs that a particular debt should be paid to Thomas Williams by A. J. Williams, in the event it were not collected from another source. But this did not vitiate the award; if Thomas Williams failed to collect it, he might have claimed credit for the amount on the trial; or he might afterwards go against A. J. Williams for it, if the result of the effort to collect were not known at the time of trial.

The action was debt; all the counts are such as pertain to that action, although some of them are not strictly correct in point of form; the plea was nil debet. There is no room for the objection that there is no bill of particulars in the record, because the statute applies only to actions of assumpsit. H. & H. 590, sec. 6.

The objection, that the verdict is for more than the amount indorsed on the note, cannot prevail. The verdict corresponds with the amount claimed in the declaration. See Fall v. Comm'rs of Sinking Fund, 3 S. & M. 128; Ib. 90; 3 How. 263.

Judgment affirmed.  