
    Ott et al., administrators, v. Schroeppel.
    
      Arbitration. — Award.
    Every reasonable intendment will be made to uphold an award; any form of words which amounts to a decision of the question submitted, is sufficien as an award.
    An award, in terms, less comprehensive than the submission, is valid, unles it affirmatively appear that matters submitted were brought before the arbi trators, and not embraced in their award ; the court will not presume, without proof, that they have neglected to pass upon a portion of the matters submitted.
    Where the submission requires that the award should he attested, a subscribing witness to its execution by two of the arbitrators, will be deemed sufficient.
    Ott v. Schroeppel, 7 Barb. 431, reversed.
    Appeal from the general term of the Supreme Court, in the fifth district, where judgment had been entered in favor of the defendant, upon a special verdict. (Reported below, 7 Barb. 431.)
    *This was an action of debt, brought by the administrators of Edward Ott, deceased, upon an award. The case first came before the supreme court, upon demurrers by the plaintiff to the defendant’s 3d, 4th and 6th pleas, and by the defendant to the replications to the 2d and 5th pleas; the court sustained certain of the demurrers and overruled the others, with leave to amend, on payments of costs. (3 Barb. 56.) The replications having been amended, the defendant again demurred, but his demurrer was overruled, with leave, &c. (4 Barb. 250.) The cause being at issue on the merits, on a trial before Pratt, J., the jury found a special verdict, establishing the following state of facts:
    
      By a certain agreement, bearing date the 1st March 1835, the defendant contracted to sell certain lands to Edward Ott and Joseph Ott, upon the payment by them of the sum of $500.59. On the 28th December 1842, Edward Ott and the defendant entered into arbitration bonds, whereby they submitted to four arbitrators, or to either three of them, to award and determine of and concerning: 1. The amount which had been actually paid upon the said contract, which in justice should be applied thereon, and to indorse the amount so found on said contract: 2. Of and concerning all actions, &c., and all other matters, &c. (excepting a slander suit); so as the said award be made in writing, subscribed by them, or any two of them, and attested by a subscribing witness, ready to be delivered to the parties, on or before the 1st February, then next.
    Three of the arbitrators accepted, and on the 28th January 1843, two of them made an award, wherein they set forth that they had heard the proofs and allegations of the parties, and examined the matters in controversy submitted, and awarded that the defendant pay to Edward Ott, the sum of $532.69, which was to be in full satisfaction of all debts, dues and demands, which then were, or had been, in suit, and of all causes of action, &c., that may have existed, or did then exist, between the parties, except the slander suit.
    At the same time, the two arbitrators made an indorsement upon the contract referred to in the arbitration bonds, in the words following: “The whole amount which has been paid, actually, on the within contract, up to the 1st day of January, in the year 1841, is, and by our award amounts to, the sum of $530.62. Given under our signatures, this 28th day of January, in the year 1843.” Their signatures to this indorsement were duly attested by two subscribing witnesses. The third arbitrator also signed the indorsement on the contract, but without any attestation.
    
      . *The court, at general term, gave judgment for the defendant upon the special verdict; whereupon, the plaintiffs took this appeal.
    
      Morgan, for the appellants.
    
      Sabine, for the respondent.
   Paige, J.

It is objected by the defendant, that the arbitrators have not determined how much was actually paid on the contract between the defendant and Edward and Joseph Ott — a matter specially submitted to their decision — and that the omission to make a determination as to this matter, vitiates the whole award. It is insisted, that the indorsement on the contract is not an award; and, if an award, that it is radically defective, because it does not contain an adjudication of how much had been paid on the contract, up to the date of the bonds of submission.

I think, the indorsement on the contract may be regarded as a part of the principal award. The indorsement and the award were simultaneous acts of the arbitrators; having been made at one and the same time, they must be considered as constituting but one instrument, and must be construed as such. (Chit, on Cont. 89, and note 1; 13 Wend. 122; 10 Pick. 250, 302.) If the substance of the indorsement had been incorporated in the body of the principal award, or indorsed upon it, it would have been unobjectionable in form, as a determination of the amount paid on the contract.

The indorsement on the contract is good as a distinct award. Any form of words which amounts to a decision T1®3^0118 submitted is good as an award; no technical expressions are necessary, nor any introductory recitals. (Russell’s Arbitrator 244-5.) On a submission in relation to dilapidations, tbe report of an umpire, in these words, “ I have surveyed and estimated the several works necessary to be done in repairing the dilapidations to a house, &c., and find the same amount to the sum of 551. 5s.,” was held a good award, binding on the parties. (Whitehead v. Tattersall, 1 Ad. & E. 491.) So the words, “ I am of opinion, that Messrs. M. & Co. are entitled to claim of T. & Co. 134¿., for nonperformance of their contract for 50 puncheons of brandy,” were held by Abbott, C. J., a sufficient award. (Matson v. Trower, R. & M. 17.) In Platt v. Smith (14 Johns. 368), where the arbitrators wrote in the margin of their award, the words, “ G. P. is to give up the note which he holds against N. S. & Co., ’’the court held, they were to be considered as a part of the award, and to receive the same construction as if they had been inserted in the body of it.

The arbitrators, in this case, in the indorsement on the contract made and signed by them, adjudicate that the amount paid on the contract, up to the 1st January 1841, is $530.62, and to indicate that this indorsement is made and signed by them, as a separate award, or as part of the principal award, they declare that the amount so paid “by our award, amounts to $530.62.” The indorsement is properly attested by a subscribing witness, as to two of the arbitrators who subscribed the indorsement; the same two who alone subscribed the principal award. The signature of the third arbitrator, who did not unite in the principal award, and which is not attested by the subscribing witness, may be rejected, or regarded as surplusage; the submission only requires that the award be subscribed by two of the arbitrators.

The principal question in this case is, whether the in-dorsement on the contract, considered as an award, valid in its form, is not radically defective, because it does not *embrace the whole of the specific matter referred, by ail express determination, of the amount paid on the contract, to the date of the bonds of submission. The award is confined to the amount paid, up to the 1st day of January 1841, nearly two years prior to the date of the submission bonds.

If the submission is made conditional, by the clause of ita quod arbitrium fiat de prsemissis, and recites several distinct matters, which are specifically referred, and the arbitrators omit to decide one of the matters, and there are no general words in the award, which can be construed to embrace a decision on such particular matter, the whole award is bad. (Baspole’s Case, 8 Co. 97; Randale v. Randale, 7 East 83; Jackson v. Ambler, 14 Johns. 96; Willes 268; Wright v. Wright, 5 Cow. 199; Russell’s Arbit. 250-1, 255; Rider v. Fisher, 3 Bing. N. C. 874; Simmonds v. Swaine, 1 Taunt. 549, per Chambre, J.; 1 Saund. 32, note 1; Ross v. Boards, 8 Ad. & E. 290; 1 Bac. Ab., tit. Arbit. E. 216; Cro. Eliz. 838; Lutw. 545.) Where the submission containing the ita quod clause is general, but the adjudication applies in terms only to a particular matter, the award, if it purports to be made concerning the matters submitted, will be presumed good, until it is proved that there were other matters before the arbitrator, which he neglected or refused to decide. (Russell’s Arbit. 258, 261, 264; Ingram v. Milnes, 8 East 444; Baspole’s Case, 8 Co. 97; 5 Cow.,199; 9 Ad. & E. 522; 1 Burr. 277.) No objection can be taken to the award, for the arbitrator’s omission to decide matters not brought to his notice. (Russell’s Arbit. 252; 8 East 444; Cro. Jac. 200; 5 Mylne & Cr. 281; 1 Peters 226; 1 B. & Ad. 723; 2 Ad. & E. 752.) If the arbitrator, on the face of his award, made upon a general submission, expressly excepts from his decision a particular matter within the scope of the submission, the award will be void in toto. (Russell’s Arbit. 253; 5 Cow. 199; Turner v. Turner, 3 Russell 494; Willes 268.) An award, made under a general submission, is final as to matters within the submission, although not brought to the *notice of the arbitrator, nor embraced in his award. The parties are bound to claim before the arbitrator all demands coming within the scope of the submission; and if they fail to do so, they will be concluded from ever after asserting such demands. (Fidler v. Cooper, 19 Wend. 288; Dunn v. Murray, 9 B. & C. 780; Smith v. Johnson, 15 East 213.)

The question in this case is, whether the arbitrators have passed upon the whole of the distinct matter specifically submitted. They have made an adjudication upon such matter; but it is objected, that such adjudication is not co-extensive with the submission; that it does not embrace payments which may have been made on the contract, between the 1st January 1841, and the date of the bonds of submission. The arbitrators, undoubtedly, had power to determine all matters in controversy existing at the time of the submission. (9 Ad. & E. 522, Littledale, J.) They merely determined the amount of the payments made on the contract up to the 1st of January 1841. It is insisted on the part of the appellant, that, as there is no allegation or proof in respect to any payments made after that day, it will be intended there were none. On the other side, it is contended, that as the finding is expressly limited to the 1st day of January 1841, all ground for presumption that the arbitrators intended to embrace in their award the two succeeding years, is precluded. If the submission had been general, to impeach the award, it would have been necessary to show that there were matters in difference in relation to payments made or claimed to have been made between thé 1st January 1841, and the date of the submission bonds, which had been brought to the notice of the arbitrators, and which they had declined to determine. But it is said, that the rule is different iu relation to a specific submission of a distinct matter In 1 Bacon’s Abr., title Arb. E., p. 217, it is said, “ that if two submit all actions till the 9th of June, ita quod, &c., and an award is made of all actions till the 7th, some have *said, this is less than the submission, and void; but the better opinion is, that this is well enough, especially, unless there be shown on the other side, an action arising between the 7th and 9th.” In Ingram v. Milnes (8 East 450), Lawhence, J., referred with approbation to 1 Com. Dig., tit. Arb. E. 10, where it is said, “ that if an award recites that controversies were depending the 29th of January, and it be made de et super priemissis of all matters till the 28th January, it is good; for it shall not be intended, unless it be averred, that any matter was depending on the 29th, which wa§ not so on the 28th.” In Bussfield v. Bussfield, (Cro. Jac. 577), the submission (dated December 1st) was of all matters and controversies; and the arbitrator awarded that the parties should release to each other all actions and demands which existed before the 28th of November; and it was held, it should be intended that no controversies arose between the 28th of November and the 1st of December. A like decision was made in Ward v. Uncorn (Cro. Car. 216). In Barnes v. Greenwell (Cro. Eliz. 858), where the submission was of all suits, &e., depending until the day of the date of the bond of submission, which was the 4th of September, and the arbitrator made an award of all matters until the 3d of September, the court decided, that the award was good, and that it should not be intended, that there were other matters depending, unless they were shown.

These authorities tend to show, that in this case, the court is authorized to presume, that there were no payments made between the 1st day of January 1841, and the date of the submission bonds, or that, on the latter day, there was no matter in controversy depending, in relation to payments on the contract, which was not depending on the 1st January 1841. This is not the case ,of an omission to determine a distinct matter specifically submitted; here, the arbitrators actually pass upon the matter submitted. They say in their award, that they have heard the proofs and allegations of the parties, and examined the matter in controversy by them submitted in the bonds *of submission; and then they find that the whole amount paid on the contract, up to the 1st January 1841, is $530.62. They declare they have passed upon all the matter submitted, and find the amount paid to that day. It seems to me, under the rule that every reasonable intendment must be made to uphold an award (1 Peters 228; 2 Cow. & Hill’s Notes, 1028), that in this case, we must intend that no more than the sum indorsed on the contract had been paid up to the date of the bonds of submission; and that the arbitrators embrace in their finding the whole period down to that time. "We have a right to presume, that there was no evidence before the arbitrators of any payments subsequently to the 1st of January 1841, and that, therefore, they inserted that date in their award. This being the conclusion at which I have arrived, I am of opinion, and such is the opinion of the court, that the award is valid and binding upon the parties. The judgment of the supreme court must, therefore, be reversed, and a judgment must be entered in favor of the plaintiffs for the sum found by the special verdict to be due to them.

Foot, J.

On looking at the submission and awards, it is manifest, that the arbitrators have passed on the two matters submitted to them, and intended to make, and have substantially made, their award upon them. If the controversies between the parties are not closed by the judgment of this court of their own creation and selection, it is because some technical rule on the subject of awards has been violated.

I concur in the opinion of the supreme court, delivered by Mr. Justice Gridley, that the two matters in dispute between the parties, mentioned in the bonds of submission, were submitted to the arbitrators ; but I do not think, it follows, and cannot concur in the position, that an award upon each must be embraced in the same instrument. The learned judge discussed this point with his usual clearness and ability, when this case was before the supreme court on an issue of law (4 Barb. 250), and came *to the conclusion, that as the two matters submitted were distinct, a separate award might be made upon each. .This conclusion appears to me to be sound; and I do not see any such difference between the case, as it stood on the issue of law, and as it now stands on the special verdict, as should lead to a different opinion on this point. It is true, as mentioned by the learned judge, that both awards were not fully set forth on the former occasion, but the bonds of submission were, and on them alone depends the question, whether the two matters submitted are so distinct as to admit of separate awards. It appears to me, that there is no room to doubt, that the parties not only submitted two distinct matters, but provided for separate awards upon them; the language of their bonds is clear and explicit on this point. While the correctness of the rule is admitted, that each party has a right to claim that both subjects shall be awarded upon, yet it is unreasonable, and contrary to the received doctrine on this subject, that the parties may not provide for separate awards. I place my opinion in this case, in favor of the correctness of separate awards, on the meaning and true construction of the bonds of submission.

The only remaining question is, whether the indorsement on the contract is an award in pursuance of the 'submission. The terms of the submission are, “ to hear all the proofs and allegations of and concerning the amount which has been actually paid upon a certain contract between the said Schroeppel of the one part, and the said Edward Ott and Joseph Ott, of the other part, of date March 1st, 1835, which in justice should he applied thereon, and indorse the amount so found on said contract.” On that contract, is an indorsement, signed by the arbitrators, bearing even date with their formal award on the other matter submitted, viz., 28th January 1843, in the following words: “The whole amount which has been paid, actually, on the within contract, up to the first day of January, in the year 1841, is, and by our award, amounts to, the *sum of five hundred thirty dollars and sixty-two cents.” In my judgment, this is an award, in substantial compliance with the submission; to hold the contrary, would do violence to common sense, and sacrifice substance to form. There are two objections made to it.

1. It is said, the submission required the arbitrators to decide the amount actually paid on the contract, up to the date of the submission, viz., 28th December 1842. The answer is, that they have so decided; for, in the absence of an averment to the contrary, the court are bound to presume there were no payments made, nor any controversy between the parties, respecting any payments after the 1st January 1841. If,, in point of fact, there were no payments on the contract, after the first of January 1841, nor any question raised before the arbitrators, concerning any such payments, and that fact appeared, the award would be good. But the b rule is more favorable still to the validity oí Lre award. “ Everything is to be intended in favor of an award.” (Watson on Arbitration and Awards 122.) In accordance with this principle, it has been held, in this state (Case v. Ferris, 2 Hill 75), that, “if there is nothing on the face of an award showing that it may not be rendered certain by matter extrinsic, the intendment will be, that it is certain, until the contrary be shown.” And on the very point under consideration, Spencer, J., in the case of Jackson v. Ambler (14 Johns. 106), states the rule in these words, “ for though the words of the submission be more comprehensive than those of the award, yet, if it do not appear, that anything else was in dispute between the parties, beside what is comprehended in the award, the award will be good.” This decision is decisive against the objection that the award is not as comprehensive as the submission.

2. The other objection to the award is, that there is a witness to the signatures of only two of the arbitrators. The answer which the learned judge gave to this objec-^on’ *wkerL fhe case was before the supreme court on demurrer, is the true one. (4 Barb. 255.) It was, that in law, the award not being attested as to the third arbitrator, was not his award; it was, in legal intendment, the award of the two who subscribed it, and. whose signatures were attested.” It should be noticed, however, in this connection, that the submission provided, that the award should be in writing, subscribed by the arbitrators, or any two of them, and attested by a subscribing witness. Hence, an attestation to the subscription of two of the arbitrators, is a full compliance with the requirement of the submission.

Judgment reversed, without costs, and judg- ■ ment for the plaintiff, with costs, in the supreme court. 
      
       A liberal interpretation will be given to a submission and award, so as to uphold the latter, when not attacked for corruption or misconduct of the arbitrators. Curtis v. Gokey, 68 N. Y. 300; Locke v. Filley, 14 Hun 139.
     
      
       Jones v. Cuyler, 16 Barb. 576.
     