
    John A. Knowles vs. Samuel C. Shapleigh & another.
    S. & Co. agreed in writing with C., that if he would build a shop on land held by him under a five years’ lease from the owner thereof, and would assign to them his interest in certain under-leases of parts of the same land made by him for the same term, which leases had been assigned by the lessees to S. & Co., and if S. & Co. should be permitted to occupy the land, without paying rent, for three years, they would then reassign the under-leases to C. A few months after the making of this agreement, and after S. & Co. had entered upon the land, a difference respecting the land and the buildings thereon arose between the parties, whe thereupon agreed that such difference should be referred to arbitrators, and that all papers pertaining to the land should he committed to them, and that they should judge in the case, and report what in their judgment was just and right to be done between the parties, and fix the term of time for which S. & Co. should occupy the land as full compensation for what was their rightful due. The arbitrators awarded that S. & Co. should occupy the premises free of rent for two years and six months from the time of their entry upon the premises. It was held, that the agreement in writing was merged in the submission and award; but that S. & Co., if they occupied the premises after the expiration of the time named in the award, were liable to C. in assumpsit for use and occupation.
    This was an action of assumpsit brought against the defendants, constituting the firm of S. C. Shapleigh & company, by Cyril Coburn, on the 29th of November, 1847, and now prosecuted by John A. Knowles, as his assignee. The declaration contained two counts. The first count alleged that the defendants on the 1st of September, 1842, by an agreement in writing made between them and Coburn, agreed with Coburn, that if he would, within four weeks, build them a shop on a lot of land in Lowell, of which he had a lease for five years from the 21st of June, 1842, from the Proprietors of the Locks and Canals on Merrimack river, the owners of the land, and of parts of which he had made under-leases to different persons, which had all been assigned by the lessees to the defendant, and would also assign to them all his interest in the under-leases, and if they should be permitted to occupy the shop during the term of three years, free from molestation or payment of rent to any persons whatever, they would, at the expiration of the three years from the completion of the shop, reassign the under-leases to Coburn: That the parties afterwards agreed that Coburn should have further time to complete the building, and that upon completion thereof the defendants would comply with the contract on their part: That Coburn completed the building accordingly, and that the defendants, on the 1st of November, 1842, entered into occupation of the same, and from thence till now had been permitted to use and occupy the shop free from molestation or payment of rent to any person whatever; and that although three years had elapsed since the completion of the building, and although Coburn, on the 30th of March, 184fi, demanded of the defendants a reassignment of the eases; yet, they had not complied with their agreement in this particular, but had neglected and refused so to do. The second count was for use and occupation of the lot of land mentioned in the agreement, from the 1st of November, 1842 until the 21st of June, 1847. The defendants specified in defence the submission and award hereinafter stated.
    At the trial, in the court of common pleas, before Perkins J., there was evidence tending to prove all the allegations in the declaration. It was also in evidence that on the 26 th of January, 1843, Coburn and the defendants executed the submission of which the following is a copy: “ Whereas a difference of opinion exists between Cyril Coburn, on the one part, and S. C. Shapleigh Sc company on the other, it is hereby agreed that said difference of opinion shall be referred to George G. Farr, Jefferson Bancroft, and Ransom Reed, as referees, and all papers pertaining to a certain store and lot now occu pied by said Shapleigh Sc company, together with all the facts in the case, shall be committed to them; and they shah judge in said case and report to us what in their judgment is just and right to be done between us; and fix the term of time, which the said Shapleigh Sc company shall occupy said store and lot, as full compensation for what is their rightful due. I, the said Coburn, hereby agree to furnish a good and sufficient lease of said store and lot to the said Shapleigh St company for said term. And we all hereby bind ourselves to abide their judgment; all of which shall be attended to as soon as practicable. If either party fail to comply with this agreement, they shall forfeit and pay to the other party the sum of five hundred dollars.”
    On the same day the parties were heard before the arbitrators, and the arbitrators made, 'signed, and delivered to the parties their award, whereby they awarded, “ that the said Cyril Coburn shall give to the said S. C. Shapleigh Sc company a good and sufficient lease of the store built by the said Coburn, and now occupied by the said S. C. Shapleigh Sc company, for the term of two years and six months, from the first day of November, 1842, it being in full and sufficient satisfaction for the sum of eight hundred and fifty dollars, paid by the said S. C. Shapleigh & company,” (the items ot which were specified in the award, one of the items being for “ loss sustained by said S. C. Shapleigh & company, on account of the delay of the said Cyril Coburn to fulfil his contract in the erection of said store, fifty-five dollars,”) “ and that the said Cyril Coburn is to have until the tenth day of February next to furnish the said Shapleigh & company with a good and sufficient lease of the aforesaid store with all the appurtenances thereunto belonging.” There was evidence tending to show that the plaintiff had complied with the award on his part, and that the defendants refused to comply with it.
    The presiding judge ruled, that on the foregoing facts the plaintiff could not maintain his action on the special count for the breach of the agreement, because the agreement declared on was merged in the agreement to refer and the award thereon; and that he could not recover on the other count, for the use and occupation of the land and buildings in question after the expiration of the two years and a half mentioned in the award. The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.
    
      B. F. Butler, for the plaintiff.
    
      J. G. Abbott, for the defendants.
   By the Court.

In the present case the plaintiff claims to recover on a count on a special agreement, and also for use and occupation. To this the defendants answer, that the plaintiff’s remedy is by an action for non-performance of the award of the arbitrators. But the court are of opinion, that on the facts proved this constitutes no valid answer to the claim of the plaintiff for use and occupation of the premises. The effect of the submission and award was to supersede all previous agreements, leases and dealings between the parties respecting the estate in question. By virtue of the award, the defendants had the right to occupy the premises for the term of two years and six months free of any claim of rent on the part of Coburn; after the expiration of this period, the defenddants had no right to occupy the estate, as against Coburn and his assignee, except as tenants. Taking into view the Drevious relation of the parties, and all the facts as disc.osed by the testimony, we are of opinion, that the defendants did so occupy the premises, after the expiration of the two years and six months, and are therefore liable to pay rent for the same for the time during which they occupied them after that term, until the time when the right of Coburn, under his lease from the Proprietors of the Locks and Canals, to the estate in question expired, and that an action for use and occupation is the appropriate remedy.

Exceptions sustained; new trial in this cowt.  