
    Brazill against Isham and Earle.
    A valid award, made by an arbitrator upon a cause of action, is a bar to a suit thereon, although the award has not been performed.
    To entitle a defendant, in a suit under the Code of Procedure, to insist upon an award upon the cause of action as a bar, he must allege it as such in bis answer.
    And where in an action on an account the answer merely denied the allegations in the complaint; Held, that the defendant could not insist upon an award made upon the account as a bar to the suit, although the fact of the award appeared from the plaintiff’s evidence.
    Action commenced in 1850 in the New-York common pleas, to recover for services rendered and expenses incurred by the plaintiff for and at the request of the defendants.
    The complaint alleged that in 1849 the plaintiff purchased of one Payne, of London, his right and title in an invention par tented by him, as regards the territory comprised within the United States; that subsequently the plaintiff commenced a negotiation with the defendants for the sale of his, interest or a part thereof, when it was agreed that a company should he formed to purchase such interest, to be called the American Timber Preserving Company; that afterwards the plaintiff at the request of the defendants, as their agent and upon their promise to pay him for his expenses and services, proceeded to London and devoted himself during several months to obtaining information touching the invention. The complaint further averred, that the plaintiff had rendered to the defendants a statement of his account or claim, which, after deducting all payments made thereon, amounted to $2,521, and demanded payment, which was refused; and that the defendants were justly indebted to him on the claim or demand in the sum above named and interest.
    The answer of the defendants consisted only of a specific denial of each allegation contained in the complaint.
    The cause was tried before a referee. On the trial the plaintiff gave evidence tending to prove his demand against the defendants, and in addition thereto, with a view, as the case states, to show that the defendants were the parties liable to him for the demand sought to be recovered, proved and read in evidence a submission of the account or demand in suit, executed by the parties, as follows:
    “Whereas, a controversy is now existing between Richard Brazill, of New-York, and Ralph H. Isham and William Earle of the city of Brooklyn, in the State of New-York, in relation to a certain account presented by said Brazill to said Isham and Earle : Now therefore, we the .undersigned, Richard Brazill, Ralph H. Isham and William Earle aforesaid, do hereby submit the said controversy or difference to the arbitrament of John Stagg; and we do mutually covenant and agree, to and with each other, that the award to be made by said arbitrator shall in all things by us be well and faithfully kept and observed; provided, however, that the said award be made in writing, under the hand of the said Stagg, • and delivered to the said parties in difference, or such of them as shall desire the same, on the 13th day of June. Witness our hands and seals, this tenth day of June, A. D. 1850.
    Richard Brazill. [l. s.] . Ralph H. Isham. [l. s.] William Earle, [l. s.]”
    The time for making the award, under the submission, was duly extended by the parties to the 20th of June. The plaintiff also, with the view above mentioned, proved and read in evidence an award made by the arbitrator named in the submission and delivered to the parties thereto, and an order sighed by the defendants respectively, as follows:
    I, John Stagg, the arbitrator named in a certain instrument in writing, executed by Richard Brazill, Ralph H Isham and William Earle, dated the 10th day of June, 1850, in and by which the said parties submitted a certain controverted account to, and bound themselves to abide by my arbitrament thereon, do hereby certify that I have carefully examined the accounts, letters and other documents submitted to me by said parties, and in compliance with the terms and intent of said submission and agreement, do award and certify that there is due by said Isham and Earle to the said Brazill the sum of two hundred and fifty-nine pounds nineteen shillings and two pence (¿£259 19 2), British money; and payable by the secretary of the American Timber Preserving Company, in the manner as set forth in the order of the said Earle and Isham of the 8th day of June instant. Witness my hand, this 19th day of June, 1850.
    John Stagg, Arbitrator.
    To Mr. Gr. W. Pine, Secretary to American Timber Preserving Company: Sir—An account of expenses incurred by Richard Brazill, &c., &c., having been rendered by him to Ralph Henry Isham, and by mutual consent referred to Mr. John Stagg to be by him adjusted : Now we, as by our signatures herein underwritten, do authorize and empower you to retain in your hands so much of the demand made in said account so rendered to Ralph Henry Isham as he, the said ■John Stagg, shall adjudge and declare to be due to the said Richard Brazill, and to pay over to the said Richard Brazill the amount so declared due, out of the funds which may and shall come into your hands for that and other purposes in the matter of expenses incurred in procurement of the patent of Charles Payne, on his, the said Richard Brazill, surrendering into your hands all papers, documents, vouchers, specimens and other things he may have, and which he holds as on account of the said Earle and Isham, and on his signing a clear quittance of all claims on the said Earle and Isham, up to the date and day hereof. June 8th, 1850.
    William Earle.
    . Ralph H. Isham.
    The plaintiff, in the language of the case, gave other evidence than the submission, award and order, establishing in. the judgment of the referee' his claim in the action, and rested. Thereupon the counsel for the defendants moved for a nonsuit, or dismissal of the complaint, on the ground that before said suit was- brought the parties had submitted the demand in question to arbitration, and the arbitrator had duly made his award thereon, which arbitration and award were a bar to this action. This motion the referee denied on the ground that the award was void on its face; to which denial and decision the defendants’ counsel excepted.
    The defendants then introduced evidence controverting the claim of the plaintiff. The referee found for the plaintiff upon all the issues; and reported the sum of $1,685.70 due him from the defendants, for which, with costs, judgment was entered. This judgment was affirmed by the common pleas at a general term. (See 1st Smith’s N. Y. Com. Pleas Reports, 437.) The defendants appealed to this co art.
    
      W. C. Noyes, for the appellants.
    I. The. question for this court to decide is whether, in an ..ction where the plaintiff proves, as part of his own case, a previous arbitration and award upon the same demand, which award is not set up in the answer, the defendant is entitled to a nonsuit. The plaintiff’s demand in this action having been submitted to arbitration, and an award duly made thereon, he could not afterwards maintain an action upon the same demand. The award, if valid, was a bar, and the plaintiff should have brought his action upon that. (Kyd on Awards, chap. 8; Caldwell on Arbitrations, 211—212; Shephard v. Watrous, 3 Cai., 166; Munro v. Allaire, 2 Cai., 320; Wheeler v. Van Houten, 12 J. R., 310; Howard v. Cooper, 1 Hill, 44; Delong v. Stanton, 9 J. R., 37; Robertson v. McNiel, 12 Wend., 578.)
    II. The court below, in affirming the judgment, admit' that the award, if valid, was final. The award is valid. The plaintiff could maintain an action upon it. 1. It is mutual. It awards a sum of money to the plaintiff, and therefore carries in itself a mutuality, and it must be held to be in satisfaction of the matter submitted. (Ward v. Ellis, 3 Cai., 253; Cald. on Arb., 113; 2 Selden, 44.) 2. It is certain. No reasonable doubt can arise upon the face of it as to the arbitrator’s meaning, or as to the nature and extent of the duties imposed by it on the parties. (Cald. on Arb., 107, 110.) 3. It is final. It is an absolute, conclusive adjudication of the matters in dispute. (Solomons v. McKinstry, 13 J. R., 27.) 4. It is consonant to the submission. The submission was of a controversy existing in relation to a certain account, and the arbitrator, having the whole controversy before him, passed upon and decided the whole controversy. (Cald. on Arb., 98.) The submission must be so construed as to make the intention of the parties prevail. (Kyd on Awards, 14.) If the persons comprehended in the award were in contemplation of the submission, though they were not directly parties to it, yet the award is good. (Kyd on Awards, 106.) If it might reasonably be presumed that nothing was in reality awarded beyond the submission, it has, in general, been supported. (Kyd, 113.) Courts never raise a presumption for the sake of overturning an award; but, on the contrary make every reasonable intendment in its support. (Cald. on Arb., 123.) If it be possible, in consonance with reason, to expound an award favorably, the court will do so. (Cald. on Arb., 131.) . The order in favor of the plaintiff, may be properly referred to as tending to show the nature of the controversy. (Doty v. Brown, 4 Comst., 71, and cases there cited.)
    
    III. But even if that part of the award prescribing the manner of payment be void, it is void only pro tanto. That part of the award is not so connected with the rest as to affect the justice of the case. It does not affect the merits-of the submission. Strike it out, and the remainder would constitute a perfect award, upon which the plaintiff could maintain an action. (Martin v. William, 13 J. R., 264; McBryde v. Hagan, 1 Wend., 326; Jackson v. Ambler, 14 J. R., 96; Doke v. James, 4 Comst., 568.)
    IY. The judgment of the court below should be set aside, and a nonsuit ordered—or at least should be modified, by reducing it to the amount awarded by the arbitrator.
    
      C. P. Kirkland, for respondent.
    I. The decision of the referee was in no degree founded on the award; the testimony of the plaintiff, irrespective of that, was the foundation of the report.
    II. The award was not set' up by the defendants, nor in any manner relied on by them as a defence. (Code, §§ 149, 150, 250.)
    III. The award was void on its face; it awarded the money to be paid by a stranger. (Solomons v. McKinstry, 13 Johns., 27; Martin v. William, 13 Johns., 264; Stevens v. Gray, 2 Harring., 347; Watson on Arb., 184, note g.; Watson on Arb., 186, note p.; 59 Law Lib., 116; Rolle. Arb., f. 1, 2, 3; 2 Saund., 337; 2 Lev., 6, 235; 1 Leon, 140, 304, 316, 
      3d Leon, 62; Moore, 359; 10 Co. Rep., 131; Cro. Eliz., 4; Brown v. Hankerson, 3 Cow., 70; Russell on Arb., 427, and case cited.)
    
    IV. At any rate, the defendants could not avail themselves of the award, without showing payment of it, and this was neither proved nor pretended. (Russell on Arb., 503 to 547, and notes, 2d Ld. Ray., 1039; 1 Ld. Ray., 247; 1 Salk., 69, 76; Allen v. Milner, 2 Tyrwhitt, 113.)
   Gardiner, C. J.

The award of Stagg the arbitrator, if valid, and insisted upon in the answer of the defendants, would have constituted a legal bar to this action. There is, or ought to be, no difference in the effect of an adjudication, as a bar to a subsequent suit, for the same cause, whether it is pronounced by judges selected by the parties or appointed by the state.. In either case, every consideration of public policy requires, that after the parties have been once fully and fairly heard, further litigation as to the same matters should cease—and no satisfactory, reason can be assigned why a judgment, as an act by the law, should estop the parties, and.an award, which is another name for a judgment, which the parties have expressly stipulated should be final as to the subjects submitted, should not be equally conclusive. I of course refer to the submission of a real or supposed cause of action, where the parties have the right to litigate, and where the arbitrator acts judicially upon then-proofs and allegations in determining the controversy between them. A person, undoubtedly, may be selected to state an account between men, who agree to abide by his report. On such a case, the report would have the same effect as though the parties had themselves stated the account and agreed upon the balance. In the case supposed, it would not be a bar to a suit on the original cause of action; but if, in add ,tion, the arbitrator had been clothed with authority to decree payment according to his judgment upon the duties and obligations of the parties to the submission, his adjudication, if fairly made, would as effectually bar anothei action, for the same cause, as the decree of a chancellor. Such is the view of Mr. Kyd in his Treatise, and such is the law of this state. (3 Caine’s R., 166; 12 J. R., 310; 1 Hill, 44; 9 J. R., 37; 12 Wen., 578; 1 Selden, 457; 2 id., 44; Kyd on Awards, chap. 8.)

It is said to have been held recently in England, that, where the action is to recover a debt, an award ascertaining the amount and directing payment cannot be pleaded in bar without alleging performance, for the money, until paid, is due in respect of the original debt. But if the demand be for a debt, and the award directs payment in a collateral way, the debt is gone, and the substituted right is all that remains. (2 Tyrwhitt, 113; 2 Cromp. and Jer., 47.) According to this doctrine, if an action should be brought upon a-contract for the sale and delivery of goods by the purchaser, a previous award in his favor, for the same matter, would be a bar to the action; because the money awarded was collateral to the agreement to sell and deliver, and a substitute for it. But a similar award in favor of the vendor for the purchase money would not be a bar to a suit by him upon the same contract, without averring and proving payment, because the money awarded “ was due in respect of the original debt.” It is, however, supposed, that the right to the goods and the right to the purchase money, in the supposed case, each accrued “ in respect of the original contract ;” and if an award, in pursuance of a submission, of all the matters pertaining to the agreement was a mere award, without satisfaction, in the one case, it should be in the other also; otherwise there would be no mutuality.

Now, according to the law as heretofore understood, every valid award substitutes new rights and corresponding obligations, in place of those arising out of the subject submitted. And the substitution is as real, though not as obvious, where a debt is determined and directed to be paid in coin, as where payment is awarded in chattels. In the latter case, the original demand is gone, it is conceded; but it is extin gúished solely by the adjudication made in pursuance of the submission of the parties. The same result follows, for the same reason, when payment is directed to be made in the currency of the country. It is said, that in this instance the award merely enforces the precedent duty to pay the money. But it does more. It.fixes the amount definitively,, and creates an obligation to pay in respect of the award, which is conclusive upon the debtor. This is all that is effected, in case of a money demand, by a judgment in a court of record. Indeed, the reasons assigned for the decision in the English case to which we are referred, are as applicable to a judgment rendered upon a bond in the king’s bench as to an award on the same subject, founded on a submission making it final and conclusive on the parties as to the whole matter in controversy between them.

The defendants, however, cannot avail themselves of the award in this case as a defence, as they have not insisted upon it in their answer. The plaintiff had stated in his complaint a prima facie cause of action, arising on the original retainer of the defendants. To meet the case thus made, by new matter constituting a defence, it must be set forth plainly in the answer.. (Code, § 149, sub.2.) An award, or a former recovery for the same cause, would fall within this category. For the defences adnyt the contract as stated, and avoid its effect by matter ex post facto. Even in equity, where technicalities were discountenanced, a party must formerly have prevailed, if at all, according to his allegations. A complainant could not, for example, avoid a release insisted upon in the answer, for fraud, without a charge to that effect in his bill, and the mere circumstance that evidence of this fact could be found in the depositions of the defendant would not avail him. He must have relief, if at all, upon the allegations in the pleadings.

Without determining, therefore, whether the award proved before the referee was void for the reasons given by the learned judge in the opinion in the court below, the judgment must be affirmed on the ground above suggested.

All the judges concurred in the foregoing conclusions.

Judgment affirmed  