
    Joseph Cohen vs. Augustus Habenicht.
    
      Award — Excess—Error of Law — Landlord and Tenant— Covenant to Repair — Damages.
    Award impugned on the grounds, that it exceeds the submission and determines matters not referred; that it does not conclude the matters referred, and so is not final; and that it professes on its face to be founded on reasons of law that are not law. These several grounds considered and overruled by the Court, and the award held good.
    Where an award purports to determine matters not referred, and is therefore in excess of the submission, it is not necessarily wholly void. If the excess can be separated irom the other parts, the former will be rejected as surplussage, and the latter will stand good.
    In an action, during the term, by a tenant against his landlord for breach of a covenant to repair, the plaintiff may recover damages to the whole estate and not merely for so much of the term as had expired before action commenced.
    The error of law which will avoid an award must appear on its face and be very clear, and be such as has plainly conducted the judgment of the arbitrators to a wrong conclusion.
    In an action for breach of a covenant to repair, how the damages may be estimated.
    An award is bad if it be not final and does not dispose of all the matters submitted.
    BEFORE LESESNE, CH., AT CHARLESTON, NOVEMBER, 1867.
    This was a bill for foreclosure of a mortgage. The facts are stated in the plea of the defendant to the further maintenance of the suit, a copy of which is as follows:
    Augustus Habenicht, of the city of Charleston, in the district and State aforesaid, in the way of plea to the bill of complaint of Joseph Cohen, brings to the attention of this Honorable Court, the following facts:
    On tbe day on which the bill was filed in tbe office of the Eegister of this Court, to wit, on the oth day of October, 1866, this defendant commenced, through his solicitors as attorneys in the Court of Common Pleas for Charleston district, an action of covenant to recover damages to the amount of five thousand ($5,000) dollars, against the complainant ; and on the original writ which is now in the possession of his said solicitors, the solicitors of the complainant on the same day entered an appearance for the said complainant.
    The said action of covenant as well as this bill arose out of an indenture of lease, executed between the said complainant and this defendant, on the 21st day of March, 1866, the original of which is in the hands of his solicitors, and a copy of which is herewith filed and marked Exhibit A, and to which reference is craved.
    On the 9th day of October, 1866, an agreement was entered into between this defendant and complainant, through their solicitors, which is in the following words, to wit:
    “ Charleston, S. C., October 9, 1866.
    “It is agreed between us, as the counsel of Messrs. Augustus Habenicht and Joseph Cohen, that all matters now pending between them arising out of the lease of the French Coffee House on East Bay, dated the 21st day of March, 1866, including the suit in equity and at law, commenced by the said parties respectively, as well as all questions as to the duties and obligations of the said parties, arising out of the said lease, and their responsibility for the non-observance of the covenants of the same, or under the said covenants, up to this time, shall be referred to the Hon. W. A. Pringle, as a referee, and that he shall hear the evidenee which may be adduced, and submit his award in the premises, which shall be final and conclusive upon the said parties.
    (Signed) Macbeth & Buist, For Augustus Habenicht.
    (Signed) J. Barrett Oohen, For Joseph Oohen.”
    Shortly after this agreement, this defendant and the said complainant, each in his own person, attended by his solicitor, appeared before'Hon. W. A. Pringle who for two days was engaged in hearing evidence and argument on the matters submitted to him, and on the 1st day of November, 1866, rendered an award, which is in the words following, to wit:
    “ On the 21st March, 1866, Mr. Joseph Cohen leased to Captain Augustus Habenicht the premises on East Bay, known as the French Coffee House. The lease was to commence on the 1st July, 1866, and was to continue for the term of ten years. The covenant on the part of Mr. Cohen was, that he was to put necessary repairs on the premises as soon after the 1st day of July, 1866, as possible, ‘the said necessary repairs to consist of such work as will make the said premises thoroughly tenantable.’ The covenants on the part of Captain Augustus Habenicht were, that he would pay this yearly rent of $2,000, in gold or its equivalent in currency, in quarterly payments, on the 1st days of October, January, April, and July; that he would keep the premises painted and in good order: that is to say, free from ordinary leakage, and the shutters, sashes, blinds, glasses, cisterns, privies, pumps, roofs, floors, and so forth, in good order and condition, excepting such damage to the joists and flooring as may occur by rotting; that he would not sublet the premises, and if he failed to keep any of the covenants, it should be lawful for the said Joseph Cohen to repossess the premises as of his former estate.
    “ To secure the payment of the rent, Captain Habenicht executed a bond of indemnity in the penal sum of $4,000, together with a mortgage of his house in Church street. On or after the 1st of July, Captain Habenicht entered upon the premises under the lease, and Mr. Cohen employed Mr. Lopez, a master mechanic of large experience, to put the premises in the repair required by the lease. On the 1st day of October, Captain Habenicht failed to pay the quarter’s rent of $500 in gold then due, and on the 5th, Mr. Crhen filed a bill in equity to foreclose the mortgage given.to secure the rent. On the same day Captain Habenicht issued a writ in covenant against Mr. Cohen for the breach of his covenant, on the ground that the premises were not in thoroughly tenantable order. The parties have agreed to submit all the questions as to their respective duties and obligations to my award, after hearing the evidence which may be adduced.
    “ On the part of Mr. Cohen, it is contended that he has complied with his covenant, that the premises are thoroughly tenantable, that he is entitled to the first quarter’s rent in gold or its equivalent, with interest from the 1st October, together with the costs of the proceedings which have been commenced in the courts of law and equity. On the part of Captain Habenicht, it is contended, that Mr. Cohen has not complied with his covenant; that the premises are not in thorough tenantable condition ; that the' repairs were a condition precedent to his payment of any rent; and that he is entitled to a discount for the price of a pump which he furnished on the premises.
    “ The first question to be decided is, whether Mr. Cohen’s covenant to repair is a condition precedent to Captain Habenicht’s liability for rent.
    “I do not think that it is. There is no word used in the lease which expresses or implies that the parties understood it as a condition precedent. Mr. Cohen does not covenant to put the premises ‘previously ' in repair, or that they shall be ‘first' made’ thoroughly tenantable. On the contrary, the stipulation is that Captain Habenicht was to enter upon the premises on the 1st July, and as soon after as possible, they were to be made thoroughly tenantable. Whether a condition shall be considered as precedent or not, depends not on the form or arrangement of the words( but on the manifest intention of the parties, on the fair construction of the contract.
    
      “ And as Captain Habenicht was to enjoy the premises immediately after the 1st July, and before the repairs were made, it can hardly be regarded as the intention of the parties, that he was to occupy the premises and pay no rent until the repairs were made.
    “ The fair conclusion is, that Mr. Cohen’s covenant to repair wras not a condition precedent to the payment of the rent, but an absolute and independent covenant on his part to make certain repairs, for the breach of which he is liable for such damages as may be legitimately proved against him. And we are next to inquire, has he complied with his covenant ? Are the premises thoroughly tenantable ? I have been able to find no direct definition of the expression, tenantable repairs. In an English book of authority, Platt on Leases, 2 voh, page 197, it is stated, that a covenant to put premises into ‘habitable repair,’ imports a state that they may be used and dwelt in, not only with safety, but with reasonable comfort by the class of persons by whom and for the sort of purposes for which they are to be occupied. This definition of the word habitable, recommends itself by its propriety and fairness. In Belcher vs. McIntosh, Mr. Justice Alderson says, that the term ‘tenant-able repair,’ may have a somewhat different meaning to the term ‘ habitable repair.’ But he does not explain in wbat tbe difference consists. But I apprehend if there be any, that the expression tenantable, is rather the stronger of the two. The ordinary definition of the word habitable, is such as may be inhabited, suitable fot an inhabitant. That of the word tenantable, such as may be tenanted, suitable for a tenant.- And when a house is to be leased to others; the word tenantable would seem to imply something beyond its being merely such as may be inhabited or fit for habitation, something in fact which would exceed a mere habitation, and offer an inducement and attraction to a tenant.
    “Fuller, speaking of Colchister in his History of the Worthies of England, says in his quaint old English, 'all men beheld it as tenantable full of houses.’ This I suppose may be what Mr. Justice Alderson means, when he says that there is difference between the terms tenantable and habitable. But allowing that there be no substantial difference between the words tenantable and habitable, I suppose it is fair to assume that when Mr. Cohen covenanted to make the premises thoroughly tenantable, he undertook to put them in a condition that they might be used and dwelt in, not only with safety, but with reasonable comfort by the class of persons by whom and for the sort of purposes for which they were to be occupied. And the premises in question have been long well-known as a first class, restaurant, a sort of establishment used for purposes requiring more embellishment, and attraction, and repair, and equipment, than a mere habitation. A man who goes to a hotel or eating house, expects to find something better than he has at home. The modern drinking houses of the world are made gorgeous by every display and embellishment of art.
    “ The gin palaces of London and the saloons and restaurants of Paris are adorned by everything that can attract the eye and captivate the senses. I do not for a .moment presume that it was within the contemplation or the contract of the present parties to attempt to vie with such establishments as these. But in endeavoring to fix a definite interpretation to the expression thoroughly tenantable, which was used in reference to these premises, leased as the French coffee house, there must be some reference to the class of persons by whom, and the sort of purposes for which they were to be occupied; and looking at them, I must come to the conclusion, that the words thoroughly tenantable, must be construed to mean something beyond their being merely air-tight and weather-tight, something if not of ornament at least of decency and cleanliness. But whatever illustrations I may use, I do not mean to extend the term in reference to a building in Charleston, beyond these requisites. In determining whether Mr. Cohen has come up to the standard, as laid down in Platt, I have no other guide or light than the testimony which has been produced before me. I have not inspected the premises, and must depend upon the description of the witnesses. And here I meet the difficulty that the testimony is contradictory. On the part of Capt. Habenicht, it is testified to by the Rev. Mr. Yates, Wm. C. Lowndes, Mr. Hargrave, Mr. Gruber, Mr. Coogan, Mr. Kenake, Mr. Torch and Mr. Purcell, that the premises aie not in tenantable order ; that the billiard room has a pile of rubbish in it; that the walls are stained, ami that there is a large hole in the roof. Mr. Lowndes describes the upper rooms as being in an abominable condition ; that he would not put a decent person in them, and that there are marks of leaks down the walls. Mr. Lopez, on the contrary, a contractor and builder of large experience, produced on the part of Mr. Cohen, testifies that under the direction of Mr. Cohen, he put the premises in thorough tenantable order, stopped all the leaks, and did all, and more than he thought the lease called for, and as much he thought as Capt. Habenicht required. 'In this conflict of testimony I can only decide according to tbe greatest weight of the evidence. But it is said that the condition of the premises is a matter to be decided by the opinion of experts, and that Mr. Lopez’s opinion, on account of his profession, is entitled to a greater consideration than that of the other witnesses. I might agree to this proposition, if the question were confined merely to the safety of the building, and the substantial character of the joiner’s or carpenter’s work. But the question here is not merely as to the quality, but the quantity of the work. I am to decide not merely as to how the work was done, but whether it was done, not merely .how, but how much. It is a question not merely of opinion, but of fact; not merely whether a leak was substantially and expertly stopped, but whether it was stopped at all. The word expert is derived from the Latin expertus, which signifies instructed by experience. Now the question as to whether a house is tenantable or habitable, does not requiie for its solution that a man should have served his time as a mechanic. It is not necessary that he should be able to project a spiral stair, or turn an arch, to enable him to say whether a roof leaks or not, or whether a house is in that condition that it may be dwelt in with reasonable comfort, by the class of persons by whom, and for the purposes for which it is to be occupied. To know whether a house is tenantable is not a matter of learned and instructed information, but of common intelligence and ordinary experience. Every householder is an expert in such a case; it is a matter which lies within and not without the knowledge of ordinary people, and the ordinary experience of life. I must here remark that Mr. Lowndes, Mr. Kenake and Mr. Purcell, all of whom inspected the premises after Mr. Lopez had completed the repairs which he thought necessary, testified that there is a hole in the roof. Mr. Lowndes said it was six or eight inches in diameter, and Mr. Nenake, as large as my clock. I am therefore constrained from the weight of the testimony to conclude that Mr. Cohen has not complied with his covenant, to make the premises thoroughly tenantable, and that they are not in such a state that they may be used, and dwelt in with reasonable comfort, by the class of persons by whom and for the sort of purposes for which they are to be occupied. The next point is the amount of damages, if any, to which Capt. Habenicht is entitled for the nonperformance of the covenant by Mr. Cohen. I quite agree that mere speculative damages are not to be allowed, and if the contract were merely executory, as it was in the case of JSunt ads. Dorval, in Dudley’s Reports, 180,1 would regard the authority of that case as decisive. But the present is not an executory contract. Mr. Cohen has put Capt. Habenicht in the possession of .premises,cwhich he has covenanted to put in a certain condition of repair. If they are not in the condition which his covenant calls for, clearly he cannot demand of his tenant payment of the same rent that he would have been entitled to if he had put the premises in the condition which he had covenanted to do. It would be difficult to determine, from the condition of the premises given by the witnesses, what deduction should be made from the reserved rent. The only guide before me is what in the opinion of the witnesses who have testified, would be a fair rent for the premises in their present condition. The only witness produced by Mr. Cohen on this point, is Mr. Lopez, as he is of opinion that the premises are in the condition in which Mr. Cohen covenanted to place them, it must be his opinion that the premises are worth the whole rent reserved in the case. But as I am obliged to adopt the opinion of the witnesses produced by Capt. Habenicht as to the condition of the premises, I must also determine their value from their testimony, rather than from that of Mr. Lopez. These witnesses say that the premises are worth from §1,280 to §1,500 per annum in currency, and taking tbe opinion of Mr. Torch, who seems to have an interest in the lease, I must fix the rent of the premises, in their present condition, at $1,500 per annum in currency. Capt. Hab'enicht, however, claims a discount from the rent of $65, on account of a pump which he claims was provided •by him; to this Mr. Cohen objects, that by an understanding with Capt. Habenieht, he had agreed that Capt. Habenicht might purchase certain fixtures of the outgoing tenant, which he, Mr. Cohen, thought he had a right to, and that he, Mr. Cohen, would not follow them up if purchased by Capt. Habenieht. Mr. Cohen contends that this agreement referred only to bis not claiming any of the fixtures of Mr. Coogan, which Capt. Habenieht might purchase, and that it was not his intention that he should be called on to pay for anything which Capt. Habenieht might buy. But as it does not appear that Mr. Cohen made any obstacle or objection to the removal of the other fixtures of Mr. Coogan, which Capt. Habenieht did not purchase, and as a pump is one of the indispensable and necessary fixtures, which Mr. Cohen is bound by his contract to furnish, whether purchased by Capt. Habenieht or not, I cannot think that it should be regarded as included in the agreement in relation to the fixtures of Mr. Coogan. If it had been removed by Mr. Coogan, Mr. Cohen would have been bound to replace it. I therefore think that the value of the pump is a legitimate discount, to be deducted from the amount of the rent. It is proved by Mr. Torch and Capt. Habenieht, that Capt. Habenieht retained the pump, and replaced it by another given to Mr. Coogan, for which he paid $65. This seems to be a large price, and as Mr. Lopez has testified that $20 is the usual price for a pump, proper for the premises, I fix that sum, as the one to be deducted from the rent. The next point is the costs of the proceedings in equity and at law.
    
      “ Upon this point I am of opinion that as the first default was on the part of Mr. Cohen, the costs of the proceedings in equity, and of the writ issued in the law Court, in the nature of a cross action, should be borne by him. To recapitulate my opinion on the whole case is, that Capt. Habenicht shall pay rent for the -premises until they are made thoroughly - tenantable, at the rate of $1,500 per annum, in currency; that from this rent the sum of $20 should be deducted for the pump, and that Mr. Cohen should pay the-costs of the legal proceedings which have been instituted. After the premises are repaired, in accordance with the covenant of the lease, Capt. Habenicht should pay the rent he has covenanted to pay, during.the continuance of the term. I do not think that I need say more, as to the condition in which I think the premises should be put, except that the general rule seems to be, that the expression, “ good repair,” has relation to the age of the building, and is different with respect to old and new houses. It does not mean that the tenant is to have a new: bouse, but having relation to the age of the building, implies a state that they* may be used and dwelt in, with reasonable comfort, by the class of persons by whom, and for the sort of ■ purpose for which they are to be occupied.
    (Signed) W. Alston Pringle.”
    
      November lsi, 1866.
    [Here followed copies of certain notes which passed between the solicitors of the parties, which it- is deemed unnecessary to publish, and the plea concluded as follows:]
    And this defendant doth aver that all the matters and things herein set forth are-true, and pleads the same, and more particularly the award of the Hon. W. A. Pringle, referee, herein set forth to the whole of the said bill, and humbly demands the judgment of this honorable Court, whether he ought to be compelled to make any answer to the bill of complaint, and humbly prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.
    The decree of his Honor, the Chancellor, is as follows:
    LeseSNE, Ch. By indenture between these parties, dated March 21, 1866, the plaintiff leased to the defendant, the establishment on East Bay street, in the city of Charleston, known as the French Coffee House, for ten years from the 1st day of July, 1866, at the yearly rent of two thousand dollars in gold or its equivalent, payable quarterly. The plaintiff covenanted as soon as possible after the date last mentioned to put necessary repairs on the premises, so as to make the same thoroughly tenantable. And the defendant on his part covenanted, among other things, to pay the rent, as aforesaid, in quarterly payments of five hundred dollars on the 1st day of October, January, April, and July, during the continuance of the lease. And to secure the payment of the rent, the defendant also executed a bond to the plaintiff and a mortgage of certain real estate.
    The defendant entered upon the occupancy of the premises under this lease, and on the 5th day of October, 1866, the quarter’s rent, made payable on the first day of that month, being unpaid, this bill was filed to foreclose the defendant’s mortgage. And on the same day the defendant instituted an action of covenant against the plaintiff in the Court of Common Pleas for alleged non-performance of his covenant to repair.
    In this condition of things the matters in dispute between the parties were referred by them to the arbitrament of the Hon. W. A. Pringle, and a paper was drawn up and signed by their solicitors in the following terms: “ Charleston, S. C., October 9,1866. It is agreed between us the counsel of Messrs. Augustus Habenicht and Joseph Cohen, that all matters now pending between them, arising out of the lease of the French Coffee House on East Bay, dated the 21st day of March, 1866, including the suit in equity and at law commenced by the said parties respectively, as well as all questions as to the duties and obligations of the said parties arising out of the said lease, and their responsibility for the non-observance of the covenants of the same, or under the said covenants up to this time, shall be referred to the Hon. W. A. Pringle as a referee, and that he shall hear the evidence which may be adduced, and submit his award in the premises, which shall be final and conclusive upon the said parties.”
    Judge Pringle proceeded to hear evidence and argument, and soon after made his award in writing. He discusses fully what is meant by thoroughly tenantable repair, with reference to the establishment in question, and decides that the work put on it by the plaintiff does not come up to what was intended. And his judgment is in these terms: “To recapitulate, my opinion on the whole case is that Captain Habeuicht shall pay for the premises, until they are made thoroughly tenantable, at the rate of one thousand five hundred dollars per annum in currency; that from this rent the sum of twenty dollars should be deducted for the pump, and that Mr. Cohen should pay the costs of the legal proceedings which have been instituted. Alter the premises are repaired in accordance with the covenant of the lease, Captain Ilabenicht should pay the rent he has covenanted to pay during the continuance of the term.”
    The defendant has pleaded the said award in bar of this proceeding, and has set it forth in full. The plaintiff' contends that the award is not binding on him, because it is not final and certain as to the matters referred, is founded on mistake in law, is in excess of the authority conferred, and it is not pleadable as aforesaid, because there was no agreement to stay this proceeding.
    The reference embraces expressly “the suits in equity and law.” It is moreover as comprehensive as language can make it with respect to the entire controversy between the parties growing out of the lease. . And it does not appear to the Court that a decision based on the conclusions of fact arrived at by the referee could have been more conclusive or appropriate than his award. He has declared the defendant entitled to damages, and awarded them in the form of a reduction of rent, at the same time giving the plaintiff opportunity, by performing his covenant, to qualify himself for receiving the rent agreed on. The case then does not seem to be distinguishable from the case of Mitchell and Deschamps, decided recently by our Court of Appeals, in which the Court says: “As between these parties the award of the arbitrators is the law of the case, and must be regarded as final and conclusive.”
    ■ In that case the Circuit decree had set aside the award, •as being founded on mistake in a question of law. And it is worthy of remark, that the same question afterwards came before the- Court, or rather the Court of Errors, in another case, and was. decided unanimously in accordance •with the view taken in the Circuit decree. It is the judgment of the Court that the plea must be sustained, and it is ordered and decreed that the bill be dismissed.
    The plaintiff appealed on the following grounds :
    1. Because his Honor erred in deciding that the award of the arbitrator did not exceed his authority when in fact -under the w'ords of the agreement to arbitrate, to wit, the words “ up to this time,” the arbitrator had no right to decide any question beyond October 9, 1866, the date-of said agreement.
    2. Because an arbitrator is limited by the terms of the agreement to arbitrate, and any award exceeding those terms is void. •
    
      • 3. Because the award is not final, it leaves open thp very question in dispute by declaring that the rent shall be changed from the terms of a sealed lease until such time as the building should be placed in tenantable repair, thus leaving open the question between the parties as to what constituted tenantable repair.
    4. Because the conclusions of the award not being warranted by the law by which the arbitrator intended to decide, the award should be set aside.
    5. Because the arbitrator having decided that the covenant in the lease to repair was not a condition precedent to the payment of rent, he was bound to award to Cohen, the entire rent called for by the lease, and could only award to Habenicht such amount as damage as had been clearly proven to have been lost by him.
    6. Because, there having been no agreement to discontinue the suit in equity, even if the award had been final, the plaintiff' was entitled to a decree for the amount acknowledged to be due by the plea; and his Honor erred in ordering the bill to be dismissed.
    7. Because the bond secured by the mortgage being conditioned for the payment of rent quarterly, and whereas a large amount of rent was due, the plaintiff' was entitled to a decree for foreclosure on failure of defendant to pay the said rent.
    Cohen, for appellant,
    cited on 1st, 2d, and 3d grounds, Adams Eq. 192-; Billings on Awards, 132 ; Barpole’s Case, 8 Co. 98; Gibson vs. Broad/oot,S Des. 11; Randall vs. Randall, 7 East 81. On 4th ground, Kyd on Awards, 351; Redout vs. Payne, 3 Atk. 494; Comeforih vs. Geer, 2 Yern: 708; Delwer vs. Barnes, 1 Taunt. 52; Kent vs. Bstob, '3 East, 18 ; Young vs. Waller, 9 Yes. 365; Bonner vs. Garleton, 5 East, 140; Alwyn vs. Perkins, 3 Des. 305; Haltner vs. Elinaud, 2 Des. 571; Bouteler vs. Thriclc, 1 D. & R. 366, 2 Story Eq. 676. On 5th ground, Sedg. on Dam. 36-7, 71, 170, 337 ; Hunt vs. Dorval, Dud. 180. And on 6th ground, 2 Ld. Ray, 789; Rowe vs. Wood, 1 Jac. & W. 325; Marldey vs. Amos, 8 Rich. 468.
    
      Macbeth and Buist, contra.
   The opinion of the Court was delivered by

Inglis, A. J.

The plaintiff by lease in writing, let certain premises to the defendant for a term of years, and covenanted that presently after the commencement of the term he would put the demised premises, in “thoroughly tenantable repair,” and the defendant covenanted to pay a certain annual rent therefor, in quarterly instalments, and to secure the payment according to his covenant executed a penal bond, and a mortgage of real property. Upon the expiration of the first quarter, the defendant refused to pay the stipulated instalment, on the ground that the plaintiff had not performed his covenant to repair. The plaintiff thereupon filed his present bill, on 5th October, 1866, to enforce the mortgage security by foreclosure and sale. The defendant immediately thereafter, on the same day, apprehending that the covenants of the respective parties to the lease might be regarded as independent, brought an action in the Common Pleas to recover damagés for the plaintiff’s breach of his covenant to repair. In this state of the controversy between them, these parties with a view, it is presumed, to arrest the litigation, came to an agreement, which was duly reduced to writing on 9th October, 1866, to submit their respective suits and the subject-matter of each to the arbitrament of the Hon. W. A. Pringle, and to abide by bis award in the premises as final and conclusive upon the parties.” On the 1st November following, the arbitrator rendered his, award, finding that the plaintiff had not performed his covenant to put the premises in thoroughly tenantable repair,” but that such performance was not a condition precedent to the defendant’s liability for the payment of the instalments of the rent, at the days limited therefor in the covenants of the lease. Estimating the damages to the defendant, from the plaintiff’s breach of his covenant, in the form of a diminution of the annual value to the defendant, and directing as his adjustment of all matters then pending between them, arising out of lease,” “ including the suit in equity and at law commenced by the said parties respectively,” that until the plaintiff should repair as required by his covenant, the defendant should pay him a rent reduced to the annual value as so diminished, and that the plaintiff as first in default upon the whole contract, should pay all costs of the pending suits. The plaintiff declining for reasons stated, to stand to the award, the same with the submission has been pleaded by the defendant to the further maintenance of the suit in equity, and upon the hearing, the plea was sustained and the bill dismissed. The appeal calls in question the judgment sustaining the plea, by impugning the legal validity of the award, on the several grounds, that it exceeds the submission and determines matters not referred; that it does not conclude the matters that were referred and so is not final, and that it professes on its face to be founded on reasons of law, which are not law; and also insists that even if valid, its legal effect was not to dispose of the suit, and it therefore constitutes no sufficient reason for dismissing the bill, but could only avail at most, for ascertaining the amount due by the defendant at the institution of .the suit, or at the hearing, for payment of which, the plaintiff was entitled to enforce the mortgage security.

, If the award exceeds the submission, and brings into the adjustments made by it, matters not referred, it is, at least to the extent of the excess, void. But it is not necessarily wholly void. If the decision which it contains of matters not referred can be disengaged, and separated without impairing or disturbing the determination therein of the matters which were referred, the excess may be rejected as surplusage and the award so far as supported by the submission will stand. (Billings on Awards, 96, 148.) The submission here was, in effeet, of the suits in equity and at law, which had been then just instituted by the parties respectively, and the matters of dispute involved in them. Neither of these suits could, at the time of submission, involve any default of the defendant therein, which had not accrued prior to its institution. The complaint is that the award, not content with ascertaining the defendant’s damages theretofore, by reason of the plaintiff’s breach of his covenant to repair, by a reduction of, or discount against the rent then due, directs a continuing reduction after the same rate, until the covenanted repairs shall be made, thus embracing time then to come, and matters not yet brought into controversy. If there be herein really an excess, it is yet one that may be readily separated and rejected, without .at all impairing the effect of the award proper. In any future suit for foreclosure, founded upon the failure of the defendant to pay the instalments of rent falling due after .the submission, it will only be necessary to reply to a plea of the award, by showing that herein the award goes beyond .the submission, and that the arbitrator was not thereby authorized to determine such matter. But does the award in this respect exceed the submission ? It must be remembered that the defendant had an estate for a term of years in the premises, and was entitled in his. action upon the plaintiff’s covenant to repair, to. recover compensation for the damage to his whole estate by the breach of this covenant. This the award gives him. The discontent is with thte method of computing the compensation. Is this method justly liable to exception? The solution of this inquiry involves the consideration of another of the objections, made by the appeal to the validity of the award, that professing on its face to conform to the law, it departs therefrom.

Every controversy touching civil rights, necessarily in-. volves questions both of law and of fact, and the ordinary tribunals are so organized as to provide for determining each according to strict rules of right. Arbitration is a method of settling their disputes which parties choose to substitute for the regular tribunals. By a submission of matters in controversy, which does not clearly provide otherwise, arbitrators are therefore invested with at least as large powers of investigation and determination as are possessed by the tribunals which they supplant. But more than this, the very purpose in transferring the controversy to such private forum is, that its fair adjustment may not be obstructed or trammelled by the technical rules of legal science, that considerations may be admitted as elements both in the matter and mode of composition, which could not find access to the judgments of the regular Courts. The aim is that substantial justice between the parties may be effected. To reach this result, uncertainties and doubts of law are to be solved by the arbitrators and their conclusions herein became law to the parties, pro hac vice. The rigor of extreme rules may be moderated by the requirements of fair dealings and good conscience. (2 Story’s Eq. 1454; Nichols vs. Roe, 3 Mylne & Keene, 438; Billings on Awards, 55-58.) The terms of submission may indeed more or less confine the range of the arbitration, as for example to the finding of the facts alone, or the facts being conceded to the application of the law thereto, and in any case to a strict observance of technical rules. In the present instance there is no such restriction. It is true however, as contended, that even under a general submission, if the award professing on its face to conform to the law, clearly departs therefrom, — if volunteering to disclose the grounds of law upon which its conclusions rest, it manifestly mistakes the law, and the conclusions fail, with the reasons assigned therefor, it cannot be sustained. “ If arbitrators,” says Mr. Justice Story, “refer any point of law to judicial inquiry, by spreading it on the face of their award, and they mistake the law in & palpable and material point, the award will be set aside.” (2 Eq. Jur. 1455; and see also Richardson vs. Nourse, 3 Barn. & Ald. 240; Cramp vs. Symons, 1 Bing. 104; Bennet et al. vs. Wilson, 3 D. P. C. 220; Archer vs. Owen, 9 D. P. C. 341.) It is not enough, however, that their mode of reaching a determination is different from that which is usual with the regular Courts, if the determination itself in its substance and on the merits seems to be fair and just. The reasoning-may be unsatisfactory, and yet the conclusions thereby attained be correct. (Vivian vs. Champion, 1 Ld. Raym. 1125.) The error of law, which will avoid an award must be very clear, and such as has plainly conducted the judgment of the arbitrator to a wrong conclusion, one but for which he must have made an award, different in its substantial results. Has any such error been committed here ?

It was necessary that the arbitrator should determine, not only whether the plaintiff had broken his covenant to repair, but also if he had, what damage the defendant had sustained thereby. How did the law require that this damage should be estimated ? In an early case Lord Holt said, “we always inquire in these cases, what it will cost to put the premises in repair, and give so much damages.” And this is perhaps the more usual mode of estimation. But in a recent case it has been suggested that the “true rule would be, tbe loss which the party damaged would sustain if he sold his estate in the market.” (Smith vs. Peat, 9 Excheq. R. 161.) The present defendant had a term of state for years in these premises.. The difference which the want of th.e covenanted repairs would make between the annual rent which he could get in the market, if he desired to transfer or assign his lease, and that which he had covenanted to pay, fairly represents his damage. In other words, the excess of the rent which he had agreed to pay, for the repaired premises over the annual value in the market of their use and occupation in their unrepaired state, was in-fact the damage he had suffered. This mode of making the computation has this advantage, that it gives to the plaintiff the option of arresting the damage, and the compensation therefor, at any time by making the covenanted repairs, and furnishes an incentive to do so, that the agreement may be thus restored to its original operation. Tbe arbitrator’s plan of adjustment in this particular effects substantial justice, and in a manner convenient to both parties. It does not appear to this Court that the award herein exceeds the submission, or that there is any such palpable or material error of law as must appear on the face of the award in order to the successful impeachment of its validity. The arbitrator had by the terms .of submission ample authority to solve for the purposes of the case the doubts, arising out of the diversity of judicial decisions, as to the correct rule of estimating and providing for the compensation to which the defendant was entitled, and was at liberty to adopt any fair and equitable plan that would in- this particular effect substantial justice. The suits at law and in equity concerned the same subject-matter — the lease and its covenants; and the reference of both in the one submission — consolidated them into one, and this rendered a blended adjustment eminently proper.

But, as an award may go beyond the submission, it may, on the other hand, fall short of its requirements. “ And if the arbitrator does not decide all the matters submitted to him, and over which he has jurisdiction, his award is bad.” (Billings on Awards.) So it is further objected here that the award is not final. This is a mistake: it concludes and finally disposes of all the matters that were referred — the pending suits, and the rights and duties to be enforced in them. Though the quarter’s rent was in arrear, and the plaintiff’s performance of his covenant to repair was not a condition precedent to the defendant’s liability, and the condition of defeasance in the mortgage was therefore forfeited, yet, inasmuch as the plaintiff was “first in the transgression,” the arbitrator considered that he ought not further to maintain his suit in equity, and should pay such costs as had already been incurred therein. This disposed of the equity suit, and all that was involved in it at the time of submission. The whole compensation sought by the defendant in his action of covenant is ascertained, the mode of its payment by an annual discount against or reduction of the rent is prescribed, and the costs of the action are provided for. Thus, this action, with all that was involved in it, is finally disposed of. And these constituted the only matters referred by the terms of the submission. There was nothing in these terms which required the arbitrator to prescribe in detail the particulars of the work which is implied in the description, “thoroughly, tenantable repair.” The verdict of a jury or the decree of a Court, would not, in either of the suits referred, have done this. It was essential for the purposes of his award that the arbitrator should ascertain whether the plaintiff had put the premises in “ thoroughly tenantable repair,” and, if not, then in some way satisfactory to his own mind, how far he had failed to do so. But it was neither necessary, nor expected, that he should have a professional survey of the premises and a plan and specifications of repair prepared. The arbitrator does, in fact, state his judgment as to the import of the description, “thoroughly tenantable,” in as definite terms as, without such details, is practicable. Nor is it any just exception that he has not precluded the possibility of future controversies to arise out of the mutual covenants of the lease, inasmuch as only existing controversies were embraced in the submission. There seems indeed an inconsistency in complaining now that the award does not adjust or prevent disputes after-wards to arise, and so is not final, and, a little while since, that it does devise, and embrace in its provisions, a scheme for precluding' such controversies by contriving a mode of adjustment that it is to run with the currency of the lease itself, and so exceeds the submission. In the judgment of this Court, it is not open to either exception.

Upon the sixth and seventh grounds of appeal it is only necessary to say that the present suit was itself one of the matters referred to the arbitrator, and his award would not have been complete if he had not finally disposed of it. The instalments of rent, fallen due in the interval between the submission and the hearing of the cause, constituted no part of the default upon which the suit was brought; and in directing the disposition of the suit, the arbitrator could not, without exceeding the submission, take into consideration the convenience of allowing it to stand for enforcing the plaintiff’s rights in the contingency of such default. It is considered that the award was designed to put an end to the existing litigation, as it ought to have done, and that such was its effect. And being here pleaded against the further maintenance of this suit, the dismissal of the bill followed as the logical result.. The Circuit decree is affirmed,, and the appeal is dismissed.

Dunkin', C. J., and Warduaw, A. J., concurred.

Decree affirmed.  