Thornton v. Carson

Washington, J.

delivered the opinion of the Court as follows i

This is a writ of error to a judgment of the Circuit Court for the district of Columbia.

Under a rule which was served upon the Plaintiff in error to show cause, during the* term at which the rule was made, why judgment should not be entered on the award,, he appeared and assigned for cause, that the said award was'uncertain, not final, unreasonable,-,conditional, and void.

These objections are'strictly technical, and referrable solely to defects supposed to appear on the face of the award, and do not aim to impeach it for any. one of the causes which the law of Maryland, passed in October, 1778, ch. 21, declares to be sufficient for setting aside an award.

This Court, not meaning to decide whether any and what other objections than those slated in the statute of Maryland, may bé alleged against, entering judgment upon awards made under orders of reference, will proceed to consider those which were stated in this case.

It is contended that this award is not final or certain, because it depends on a contingency, and will be an award in favor of the TIaintiff in one ¡event, and in favor'of the Defendant in another. This Court does not so understand the effect of this award. It is clearly in favor of the Defendant in error, in either event contemplated by the referees. The Plaintiff is required, in conjunction with certain other persons, to convey to the Defendant, for the benefit of himself and"the heirs of Thomas Carson, on or before a fixed day, certain property specified in the award, or to pay the amount of the two bonds in suit. If he made the conveyance', then the referees' have awarded certain property to the Defendant; and if he failed to do this, judgment Was to be entered against him, for the amount of those bonds. The Defendant had his election to do either; and upon *600 satisfying the Court, at the time he was required td show causé why judgment should not be entered on the award, that he had made such a conveyance as the award prescribed, the Court ought to have ordered the suits to have been entered “ settled.”

If the Pfaihtiff had made the conveyance, and the Defendant, who, upon that act being done, was required by the award to transfer five shares in the gold-mine Company, of North Carolina to the Plaintiff, had foiled to do so, the Cóurt ought to . have ordered the suits to b.e entered “ settled.” But the Plaintiff, having failed to perform the act, Upon ‘Which alone .this transfer was to be.made and the suits were to be entered “settled,” became liable to pay the sums awarded by the referees as the equivalent for.the property to be conveyed, and consequently the Court was right in entering the. judgment for the sums awarded.

There is no uncertainty in all this; or at least non® which might not be rendered certain by the act of the Plaintiff in. conformity with the,: award, and which must not necessarily be certain at the time the Court was to render judgment on the award.

The plain meaning of the award is that the Plaintiff Was to pay the amount of-the bonds iii suit, unless, by a certain day, he made a conveyance to tlie Defendant, of the property described in the award, in Which latter event hp was to receive from the- Defendant, a transfer of .five shares in the gold-mine company* and to be discharged from the payment of the money, by an entry to that effect, to be made in the suits referred. But if he refused to make the conveyánce, then judgment ttf be entered against him for the amount of the bonds in suit, if he entitled himself to this entry in his favor, by performing the other branch of the alternative, and the Defendaet failed to perform his part of the award, then the Defendant.could receive no. benefit from the award, and the suits were to be entered “settled.” Whether the conveyance from ,the Plaintiff, and* the -transfer by the Defendant, were made in due form, were questions proper for the consideration of the Court.

The award is said to be uneertcdn, because the ñame» *601 of the trustees who are to join in the conveyance, and of the heirs of Thomas Carson, are not stated, nor does the award declare who is to prepare and ténder the deed. -These, too. were questions proper for the consideration of the Court below, hut form no objections to the award.' It dots not appeal' from the record that the Defendant had refused or failed to do every thing which the law required him to perform to entitle him to the judgment of the Court, and we must therefore presume that no delinquency on* his part was shown by the Plaintiff,' that if it was necessary for him to prepare and tender the deed such as the law required, he did so to the satisfaction of the Court. If he failed to do that which would warrant the Court in entering judgment on the award, it was the duty of the Plaintiff to have shown this as cause against entering the judgment, and to have spread all the facts upon the record, which might enable, this Court to decide whether the Court below acted correctly or not.

The award is said to be unreasonable because, it requires the Plaintiff to get other persons to join in the conveyance to the Defendant which he may hot be able to do. But surely if the Plaintiff was hhund to pay the hopds in suit, or to convey a good title to certain property, which title would, not he valid in the opinion of the referees, unless other persons joined in the conveyance, he cannot surely complain that he is ordered to pay the money, unless -he executes such a deed as will pass a good title. It is his misfortune if he caiinot make the title, but it is no reason why, in that event hcshould not pay the money.

There are other causes assigned why the award is-unreasonable; hut as the facts, to prove it unreasonable do not appear in the record,, they cannot be noticed by the Court, even if such objections would. in law, be sufficient to set aside the award.

Judgment affirmed with costs.