
    Barzillai Homes and Another versus Joshua Aery
    A paroi submission to arbitrators, and a performance of their award, is a good bar to an action founded on simple contract.
    This was an action of assumpsit for the sum of five hundred dollars had and received by the defendant to the use of the plaintiffs The cause was tried, on a review, at the last November term in this county, before Jackson, J. On the trial, it appeared that the defendant, on the 27th of January, 1810, caused a policy of insurance to be effected on the schooner Trial and cargo, owned by him, at • and from Northport, in Penobscot Bay, to Charleston in South Carolina. The policy was underwritten in the office then kept by Mr. Burley, in Boston ; and the plaintiffs subscribed the same for $ 500.
    The defendant, when, procuring the insurance, represented that the vessel was taking in her cargo at Northport, about the first of said . January. It appeared that the vessel had been fully laden, and was ready for sea, with all the crew on board except the captain ; and in that situation was blown out of the harbour of Northport in the morning of the 19th of January, in a storm of unusual violence, which extended over a great part of the coast. The captain went in search of his vessel, as soon as the storm abated, and, after several days, found her wrecked on an island in Penobscot Bay, where the vessel and cargo were finally lost. It was not known at Northport that the vessel was found, until about the 29th of January, and on that day the captain wrote to the defendant, who resided in Boston, informing him of these events. It appeared, that informa[*135] tian of the * vessel’s having been blown out of port might have been communicated to the defendant in the usual course of the mail, several days before he effected the policy ; and that a man, who left that place on the 23d of January, and who did not travel so fast as the'mail stage, arrived in Boston on the 27th of January. There was much evidence on both sides, on the question, whether the policy was, or was not, completed before this man arrived in Boston, and saw the defendant. It appeared that he did see him in half an hour after his arrival in Boston, and then informed him of the vessel’s being blown out.
    The money was payable, according to the terms of the policy, in sixty days after notice and proof of loss. When it was demanded, the plaintiffs and other underwriters refused to pay, suspecting, from the c-'rcumstances of the case, that the defendant must have known of the loss, or the accident which befell the vessel, before effecting this insurance. It was thereupon agreed to refer the dispute to two arbitrators, one chosen bv each party
    
      The ground of defence on the part of the insurers was the same before the arbitrators that it was at the trial, namely, that the defendant, at the time of procuring the insurance, had information of material facts, which he did not communicate to them. ' They did not produce any of the witnesses that were examined on the trial of this action ; but stated to the arbitrators the grounds of their suspicion, that the defendant had conducted unfairly. The arbitrators told them, that they could not award against the defendant on those suspicions alone ; but that, if they, the insurers, had any evidence, or expected to produce any, the arbitrators would adjourn, to give them time to produce it. No further time' being requested, the arbitrators awarded that the insurers should pay the defendant as for a total loss ; and they paid him accordingly on the 19th of April, 1810. Neither .the submission nor award was in writing.
    The insurers having afterwards been informed of some further circumstances, which occurred at or before the time * [*136] of making the insurance (and which were proved at this ■ trial), tending, as they supposed, to maintain their original ground of defence against the claim of the assured, this action was brought to recover back the money so paid by the pla'ntiffs.
    Two questions were argued at the trial. First, whether the insurance was originally void, on account of the concealment by the assured of material facts. And secondly, whether the plaintiffs were not barred and concluded by the award.
    On the first point, the judge charged the jury very strongly in favor of the plaintiffs. As to the second point, he instructed the jury, that, if the submission and award were fairly made, and if the defendant did not practise any artifice or fraud in procuring the award, as by preventing the insurers from obtaining any evidence that they might want, or in any other manner, the award was conclusive upon both parties ; and that the plaintiffs could not now avoid the award, and try again the controversy, so decided by the arbitrators, upon evidence which they might have produced upon that occasion ; and that, if the jury should be of opinion with the defendant on this second question, they should find a verdict for him.
    A verdict was returned for the defendant; and the plaintiffs moved for a new trial, on account of the said opinions and directions given to the jury.
    Livermore, for the plaintiffs.
    
      Welsh, for the defendant.
   Parker, C. J.

This is an attempt to try over again a matter, which has been a long time since tried and determined by a tribunal chosen by the parties, in conformity to their mutual agreement in the policy. The same facts, which are now set up as a ground of action, were then insisted upon as a defence against the claim under the policy. There can be no doubt, if it had been maintained by evidence, 'the defence would have been successful before the arbitrators.

[*137]' * It appears from the report of the trial, that the underwriters were advertised of their failure of evidence, and tho‘ at opportunity was offered them of a further day, in order that they might procure testimony to prove their defence, which was, unquestionably, good in principle. But they chose to submit to a decision, notwithstanding the warning ; and they paid the money agreeably to the award.

If they could now prove that evidence was fraudulently concealed, or that the arbitrators were imposed upon by any false statements of the defendant, the case might be different. But they pretend to do nothing more than to renew their old complaint, without any thing to justify the renewal of a dispute, which was heretofore adjusted in a mode then thought best by both the parties.

This was, at least, a voluntary payment of money by the underwriters, which cannot be recovered back, unless some circumstance of mistake, fraud, or circumvention, is proved, as the actuating cause of the payment. A paroi submission to arbitrators, and a performance of their award, is a good bar to an action founded on simple contract.

Judgment on the verdict. 
      
      
        Bean vs. Farnum, & al., 6 Pick. 269. — Jones vs. Boston Mill Corporation, 6 Pick 348.
     
      
      
        Wallis vs. Wallis, 4 Mass. Rep. 135. — Gates vs. Winslow, 1 Mass. Rep. 65
     
      
      
        Newburyport M. Ins. Co. vs. Oliver & al., 8 Mass. Rep. 65 [Richardson vs. Suffolk Ins. Co., 3 Metc. Rep. 573. — Ed.]
     