
    *Willoughby v. Thomas.
    March Term, 1874,
    Richmond.
    Absent, Christian, J.
    1. Contract for Services—Breach—Damages.—W contracts with T to hire his services for a year for a fixed sum. In the course of the year W dismisses T from his employment without sufficient cause for the dismissal. It is error to hold that T, if entitled to recover at all upon the contract, is entitled to recover the hire or wages for the whole year. His right of recovery, in case of a discharge without cause, should be limited to the amount of damages actually sustained by such illegal discharge.
    2. Same—Same—Arbitration.—If an arbitrator, intending to decide the questions submitted to him according to law. states inlhis award two propositions of law. one of which is erroneous, and the other is correct upon the facts as he may consider them to be, a court, in passing upon the validity of the award, will presume that his award is based upon the latter; and the court cannot enquire whether he took a correct view of the facts.
    3. Same—Same—Same.—An award held to cover all the matters submitted.
    On the 18th of February 1869 Snowden C. Hall, S. S. Fahnestock and William Thomas entered into an agreement under seal, by which Hall sold to the other parties a tract of land in the county of Stafford, containing sixteen hundred acres, upon terms stated in the agreement. On the 13th of March 1869 the said Snowden C. Hall *and Westel Willoughby entered into an agreement under seal, by which Hall sold to Willoughby the same tract of land. And at the foot of the agreement is a statement by Thomas, that he consents to the above. And on the same day Willoughby entered into an agreement with Gilbert S. Miner, by which he agrees to sell to Miner one undivided half oí his interest in said land. And again on the same day Thomas, Willoughby and Miner entered into another agreement under seal, by which Thomas bound himself to take charge of and carry on the farm Willoughby and Miner had purchased of Hall, to cut wood and timber and cultivate the farm in all proper crops to the best of his ability, according to their directions, for and during the then present year. And Willoughby and Miner bound themselves to pay to Thomas for his services as above named, $1,050, as follows: $262 to be paid on the 30th of June 1869, $262 on the 30th of Au-f;ust, $262 on the 30th of November; and 264 on the 1st of January 1870. And further to allow to Thomas the entire use and benefit of the house, garden and lots on which the house stands, and the lot east of the house, and the tobacco patch in front, and all that he may raise or grow on the same, and to allow the said Thomas the milk of a first-rate cow. And Thomas bound himself to buy a horse for his own riding during the year.
    On the 24th of April 1869 Willoughby and Miner presented to the judge of the Circuit court of Stafford county their bill, in which they set out their agreement with Thomas. They say that in pursuance of this agreement they had procured teams, &c., and seed, and put the same in possession of said Thomas, and directed him to proceed at once to said farm and commence plowing, &c. ; that he had neglected to commence any farming operations up to the 6th of April. They charge that *Thomas failed in the promises he made to them of employing hands to work on the farm, which he had said he could do at ten dollars a month; and that on the 23d of April he had advertised for hands at sixteen dollars a month. They charge that he did not attend to the farm, and they gave him notice that the agreement having been procured by his false and fraudulent representations of his ability to procure hands and perform the work on the farm, it was null and void, and that he must leave the farm at once, &c.
    They further say that notwithstanding Thomas had been directed to leave the premises, and notified not to interfere in any manner therewith or with anything thereon, he still continues to occupy the houses, and is cultivating a portion of the lots named in said contract, and threatens to gather the crops thereon, and to convert to his own use the fruit, and he has interfered with and threatens to interfere with the future management of the said farm with the property thereon, to the plaintiff’s great damage; for which they would have no remedy as he is insolvent, having recently taken the benefit of the bankrupt law. They therefore pray for an injunction to restrain the said Thomas from interfering with their farm, from intermeddling with any portion of their cattle, horses, or personal property on said farm; from using the fruit growing upon the farm, and from interfering with any persons on said farm in the employment of complainants, &c., &c.
    The injunction was granted; but the bond was not executed until the 25th of June; and then the process was issued.
    In September 1869 Willoughby applied to the judge of the Circuit court of Stafford, for a rule upon Thomas to show cause why he should not be attached for disobedience to the injunction, in gathering and using the fruit *and injuring the animals on the farm, and why a receiver should not be appointed to take charge of said fruit, &c., and other crops and property in dispute. The rule was issued; and then Thomas filed his answer to the bill. He says he and Fahnestock were, on the 13th of March 1869, in possession of the land when they made the contract with Hall for the purchase of it. He denies that plaintiffs purchased the land of Hall, and avers that their contract was made with him; and Hall only confirmed it at his request. He says that Willoughby bought only one-half the land, and Miner and himself made the arrangement by which Miner was to have the'other half; and he sets out the arrangement. He avers that Miner had acted fraudulently in carrying out the arrangement, and he should be held bound to pay him for said moiety. And he then proceeds to answer the charges of the bill as to his conduct under the contract by which he was to' cultivate the farm.
    The case came on to be heard on the rule, when the court discharged the rule for the contempt, but appointed a receiver, to take charge of the house and lot occupied by Thomas and the lots adjoining, until the first of January 1870, when the premises should be turned over to the plaintiffs. And the receiver was directed to take charge of all the produce on the premises; but Thomas was to be allowed to use sufficient of them for the use of his family, on his paying to the receiver the value thereof, &c., or giving security sufficient for the payment thereof; and the balance thereof was to be sold. And Thomas was to be allowed to occupy the said premises upon his paying to said receiver the sum of five dollars monthly in advance.
    From this order Thomas took an appeal to the District court of appeals at Fredericksburg; where the same was affirmed. *Whilst this chancery suit was proceeding Willoughby and Miner commenced a proceeding of unlawful detainer against ’ Thomas to recover possession of the premises in his possession: and after the decision of the District court of appeals affirming the order of the Circuit court, they brought a suit upon the appeal bond against Touson the surety. In the meantime Thomas had brought an action of covenant against Willoughby and Miner to recover the wages contracted to be paid to him by them; and also an action of slander.
    In October 1870 the death of Miner was suggested; and then, with ’ the consent of Willoughby and Thomas, it was ordered that the matter's in controversy in this cause between the said Willoughby and the said Thomas, be submitted to the arbitration of Eawrence B. Taylor, whose award should be entered as the decree of the court. The legal evidence heretofore taken by depositions, or such other evidence as is material, to be adduced and considered. It is also agreed that the suits now depending in the courts of Stafford between them, and the claim of said Willoughby against James E. Touson as the security of the said Thomas in an appeal which is now depending in this court, shall also be adjusted in Said arbitration.
    On the 2d of February 1871, Mr. Taylor made his award in the case. After stating the matters submitted to him, the first of which is the matter involved in the chancery suit aforesaid, he says, I fully concur with Judge Willoughby in the position assumed by him in his argument, that there is substantially only one question to be determined, which is, whether the said contract of hiring (the contract dated the 13th of March 1869,) is to be enforced against the complainant Willoughby; and that the decision of this question will determine all, or nearly all, *the other questions arising in all the suits, both in chancery and at law.
    Why, then, should not the contract entered into on the 13th of March 1869 between Willoughby & Miner, the plaintiffs, and Thomas the defendant in the injunction suit, be enforced?
    The grounds relied on by Judge Willoughby are two:
    1st. Because there was fraud or misrepresentation on the part of Thomas in the procurement of the contract.
    2d. Such misconduct on the part of Thomas subsequent to the contract, as authorized Willoughby & Miner to abrogate the contract and discharged Thomas from their service.
    The arbitrator considers both of these grounds and holds that they are not sustained by the evidence. He then proceeds:
    I am therefore of the opinion that the contract entered into between Thomas and Willoughby & Miner, dated March 13th 1869, is a good subsisting and valid contract, and binding upon the parties.
    This -being so, the next question is, to what extent and to what amount is Judge Willoughby bound and responsible by that contract. There can be no question that the contract is an “entire contract;” that the hiring was an entire hiring for the then current year of 1869, and that Thomas, if entitled to recover at all upon that contract, is entitled to recover the hire or wages for the whole year. It is true, according to the authorities to which I am referred by Judge Willoughby, Chitty on Contracts, 5th American edition, p. 578, et sequitur, “that if a servant misconduct himself, as by willfully disobeying orders, &c., he may be discharged without warning before the expiration of the period for which he W'as hired, and is not entitled to wages,” &c. ; but on page 580 it is laid *down as the law, that “in order to justify the immediate discharge of a yearly servant there must be proved against him moral misconduct, pecuniary or otherwise, willful disobedience or habitual neglect.” As I have already said, there is no such proof in this case. In note 1, p. 579, same book, reference is made to the case of Byrd v. Boyd, 4 McCord, 246, in which it was decided that “where a planter, without cause, turns away his overseer at a season of the year when it is impracticable to get employment, &c., the overseer is entitled to the stipulated wages for the whole time. ’ ’ I have no doubt, therefore, that Thomas is entitled to the full amount stipulated to be paid him by the contract; but the question arises, should Judge Willoughby be compelled to pay the whole, or only one-half, leaving Thomas to proceed against Miner’s estate for the balance. I think he is liable for the whole. He and Miner were joint contractors, and jointly engaged in working and carrying on the farm which Thomas was employed to oversee and manage. Willoughby, as survivor, has the control and management of the farm, stock, horses, cattle, farming implements, crops, &c., &c. ; he, as such survivor, is legally bound to Thomas for the whole amount of his wages, and having the whole estate in his hands or under his control, it would operate no hardship upon him, as he has the means of reimbursing himself in his own hands.
    Now, therefore, I, Bawrence B. Taylor, having taken upon my.self the burthen of the said arbitration, and having heard and duly and maturely weighed and considered the several allegations, vouchers and proofs brought before me by and in behalf of the said Westel Willoughby and Wileman Thomas respectively, in pursuance of the said reference, do make and publish this my award in writing of and concerning the said premises following. That is to say, I do award:
    *1. That the said Westel Willoughby do and shall pay to the said Wileman Thomas one thousand and fifty dollars, the sum stipulated in the contract or agreement entered into by them and Gilbert S. Miner on the 13th day of March 1869, with interest on $262, part thereof, from the 30th day of June • 1869; on $262, another part thereof, from the 30th day of August 1869; on $262, another part thereof, from the 30th day of November 1869; and on $264, the residue thereof, from the 1st day of January 1870, in accordance with the terms of the said contract.
    2. That the receiver appointed by the decree of the 27th day of September, 1869, to take charge of the house and lot occupied by the said Wileman Thomas, and other property, &c., in the said decree specified, shall account for and pay over to the said Thomas, the proceeds of sale of all the products of said premises not taken for the use of the family of the said Thomas; that said Thomas be released from all liability on account of said products so taken; that all money paid by him to said receiver, if any, be refunded to him; that said Thomas be released and discharged from all liability for rent of said premises, and that said receiver do refund to him all money paid on account of said rent, if any; and that the said Westel Willoughby do pay to the said Wileman Thomas the farther sum of twenty dollars, as an equivalent for the use of a first-rate milch cow, from the 27th day of September 1869, the time when the receiver was appointed, to the 1st day of January 1870, when the contract expired. The evidence would probably justify a larger allowance on this behalf, but Thomas, in his answer, admits that he had the use of two indifferent cows, and I can therefore make no allowance to him on this account, except from the time of the appointment of the receiver, and twenty dollars I consider as a full and fair equivalent *for the use of a cow from that time to January 1, 1870, when the contract expired.
    3. That the said Westel Willoughby be, and he is hereby allowed, as a set-off against the amount awarded as above to the said Wileman Thomas, the costs of the injunction suit under the decree in which this award is made, including the costs in the District court of appeals, and that said injunction suit, having now served its purpose, be dismissed. I doubt whether, sitting as a chancellor, I would have awarded the injunction, and should certainly have dissolved it on the hearing; but this I consider as “res adjudicata,” and do not suppose that it was intended, by this reference, to confer upon me authority to reverse and annul the decision of the District court of appeals, under and by virtue of which Judge Willoughby is entitled to an execution for his costs, &c. This also disposes of the matter of the appeal bond, and I therefore award and determine that the parties to said bond, Wileman Thomas as principal, and James E. Touson as surety, be released and discharged from all liability on said bond, and that the same be annulled and cancelled.
    4. That the said Westel Willoughby do pay the costs of the action of covenant in the court of Stafford (Thomas v. Willoughby & Miner), and upon said payment that said action be dismissed.
    5. That the writ of unlawful detainer (Willoughby & Miner v. Thomas) in the court of Stafford be dismissed at the costs of the plaintiffs.
    6. That the action of slander (Thomas v. Willoughby) in the court of Stafford be dismissed at the costs of the plaintiff.
    
      Given under my hand this the 2d day of February, A. D. 1871.
    Bawrence B. Taylor.
    *Upon the return of this award, Willoughby moved the court to set it aside on the grounds:
    1st. Of errors of law and fact on the face of the award.
    2nd. For partiality in the arbitrator.
    3d. Said award is not final as to the matters submitted to the arbitrator, and is not in pursuance of the decree by which said arbitrator was appointed.
    The cáse came on to be heard on the 23d of June 1871, when the court overruled the exceptions and confirmed the award, and made a decree that it be entered as the decree of' the court, and the receiver was directed to settle his account before one of the commissioners of the court. Willoughby thereupon applied to one of the judges of this court for an appeal; which was allowed.
    Willoughby and Beach, for the appellant.
    H. Y. Thomas, for the appellee.
    
      
      Contract for Services — Breach — Damages. — See monographic note on “Damages” appended to Norfolk & P. R. Co. v. Ormsby, 27 Gratt. 455.
    
    
      
      Same— Same— Arbitration. — On the subject of arbitration and award, see Moore v. Luckess, 23 Gratt. 160; City of Portsmouth v. Norfolk County, 31 Gratt. 727, and note; Mills v. N. & W. R. R. Co.. 90 Va. 523, 19 S. R. Rep. 171; N. & W. R. R. Co. v. Mills, 91 Va. 640, 22 S. E. Rep. 556; Rison v. Moon, 91 Va. 384, 22 S. E. Rep. 165.
    
   Bouldin J.

delivered the opinion of the court.

The appellant’s objections to the decree of the Circuit court sustaining' the award of the arbitrator, although presented in various forms, are in effect but two.

I. That there was a mistake of law by the arbitrator apparent on the face of the award.

2. That the award was not final between the parties, because it did not dispose of the claim of the appellee Thomas to an interest in the land.

Awards which are in substance and effect judgments of a tribunal of “the parties’ own selection,” are always favored in law as tending to the repose of society and the suppression of litigation. “Expedit Respublicas ut sit finis litium. ” It is therefore only in cases of plain and *palpable mistake of law or fact that courts will interfere with an award otherwise regular. Indeed, on questions of law courts will not interfere with the award unless it be made to appear in some proper manner, that the arbitrator intended to decide according to law, and has plainly mistaken it. In what manner that fact shall be made to appear it is not necessary in this case to decide. Judge Staples, delivering the opinion of this court in the most recent case on the subject, Moore v. Luckess, to be reported 23 Gratt., 160, said, p. 164: “It may be considered as well-settled, that arbitrators being judges of the parties’ own selection, have rightfully the power to decide and finally adjudicate the law and facts of the case submitted to them. They may disregard the law entirely and decide upon principles of equity and good conscience exclusively. If, however, they mean to conform to the law, and they plainly mistake it, such mistake is sufficient to invalidate it.”

Invoking the latter proposition of law, the appellant contends that the arbitrator in this case plainly intended to decide according to law, and manifestly mistook the law, in this: that holding the contract in the case to be an “entire contract, ” and the hiring an entire hiring for the year, he laid down as a rule of law to control his decision, “that Thomas, if entitled to recover at all upon that contract, is entitled to recover the hire or wages for the whole year;” whereas his right of recovery, in case of discharge without cause, should be limited to the amount of damages actually sustained by such illegal discharge. We think the proposition contended for by appellant, and not that laid down by the arbitrator, correctly propounds the law of the case; and if we were satisfied that the arbitrator was controlled in his award by the rule of law thus assumed by him, we should be disposed to set the award aside for manifest mistake of *law; for we hold that if Thomas had been discharged the day after he was employed, without fault on his part, but on the next day obtained as good or better employment for the year, although he would be entitled to a recovery against his employers for breach of contract on their part, he certainly would not be entitled to full wages for the year as the measure of damages. The arbitrator evidently thought otherwise, and laid down the law as above stated; but it is equally evident from the face of the award, that he did not deem it necessary to rely on .that rule of law to sustain his award. In noticing the argument and authorities of the appellant he quotes from Chitty on Contracts, p. 580, as follows: "In order to justify the immediate discharge' of a yearly servant, there must be proved against him moral misconduct, pecuniary or otherwise, willful disobedience or habitual neglect;” and he goes on to say: “As I have already said, there is no such proof in this case. In note 1, p. 579, same book, reference is made to the case of Byrd v. Byrd, 4 McCord, 246, in which it was decided that ‘where a planter without cause turns away his overseer at a season of the year when it is impracticable to get employment, &c., &c., .the overseer is entitled to the stipulated wages for the whole time. ’ I have no doubt, therefore, that Thomas is entitled to the full amount stipulated to be paid him by the contract.”

We think it evident, from what we have thus quoted from the award, that the arbitrator did not base his decision on the principle first announced as law; but, taking the rule established by the case in McCord to be law, he was of opinion that Thomas was, even in that view, entitled to full wages. He held that Thomas had been discharged without misconduct on his part, when the year was nearly half gone, and he evidently was of opinion that it was then “impracticable to get employment;” *and, “therefore,” on the principles of the case of Byrd v. Byrd, independently of his first proposition of law, he regarded Thomas as “entitled to the full amount stipulated to be paid him by the contract.” Taking the view which the arbitrator evidently did of the facts, he regarded Thomas as entitled to his wages under either rule of law referred to by him; and if the award can be sustained under either view, then the objection must fall. Taking, then, the same view of the facts with the arbitrator, as we are compelled to do in this case, we think the rule of law extracted by him from the case of Byrd v. Byrd, rightly propounded the law of the case; and the award not being in conflict, but in accord therewith, we cannot say that it was made under misapprehension o f the law.

Whether the judgment of the arbitrator on the facts of the case was or was not right, is not for us to decide. If the record contains all the facts, we might be inclined to differ widely from him; but the weight and effect of the testimony was submitted to him, and we feel bound by his judgment thereon.

The next and only other question necessary to be considered is, whether the award was final? Whether it disposed of all matters submitted to the arbitrator? It is insisted that it did not dispose of Thomas’ claim to the land—that this claim was a matter of controversy in the chancery cause, and not being disposed of, that the award was not final —was incomplete and void.

The chancery suit was brought by Willoughby & Miner, but abated as to. Miner by his death; and the submission was of “the matters in controversy in this cause between the said Willoughby and the said Thomas.” These were matters of controversy with Willoughby, as survivor of Willoughby & Miner, by whom the suit was brought, and for whose benefit it was prosecuted. The *claim of Thomas was not that he had title to the land. That he never had; and any equity he might once have asserted to a portion of it under the contract of himself and Ifahnestock with Hall was abandoned when he consented in writing to the conveyance of the entire tract by Hall to Willoughby, under whom Miner claimed. Thomas’ claim was not, in point of fact, to the land, nor to any part thereof, nor was it a claim against the plaintiffs in the chancery cause, nor against Willoughby alone as survivor. It was not therefore a matter properly in controversy between Willoughby and Thomas. It seems to have been a claim against Miner alone, upon an alleged contract with him, which, if made at all, was secretly made in fraud of Willoughby, and for which Thomas seems from the evidence to have been fully satisfied by Miner. It is doubtful, therefore, to say the least of it, whether, although in fact relied on in his answer, Thomas’ claim under this alleged contract was, or could have been, an issue in the cause. It amounted in effect to a charge of fraud against Miner alone, sounding in damages against him, but not involving the title of Willoughby & Miner to the land, nor affecting the merits of the controversy.

But if it was a claim to an interest in the land, and was submitted to the arbitrator as such, we think it was definitely disaffirmed by the award. That award gave to Thomas all he claimed under the contract of the 13th of March 1869, with Willoughby & Miner; thus, according to him, in our judgment, the very utmost extent of his rights, and necessarily disaffirming any claim on his part to the land in question. The arbitrator evidently regarded this as “res adjudicata” by the decree of the 27th of September 1869, by which a receiver was appointed to take charge of the premises held and occupied by Thomas, until the 1st day of January 1870, *“when the said premises shall be turned over to the plaintiffs in the case." After providing that the receiver might allow Thomas to occupy the premises for the balance of the year on rent, the decree concludes as follows: “But said Thomas shall not occupy said premises longer than the first day of January 1870.” This decree was affirmed on appeal, by the District court, 4th judicial circuit, on the 27th January 1870, and the matters involved were treated by the arbitrator, and we think properly, as “res adjudicata.” That decree substantially affirmed that Thomas had no claim to the land, or any part thereof, after the first day of January 1870, and gave it to the then plaintiffs, and such we understand to be also the intent and effect of the award. We are of opinion, therefore, that the award covers all matters in controversy between the parties which were submitted to the arbitrator, and that there is no such error or mistake of law or fact on his part as should vitiate his award.

The decree of the Circuit court must be affirmed, with costs and damages to the appellee.

Decree affirmed.  