where a contract is made to renew a lease upon a rental agreed to be a percentage of a valuation, to be fixed by appraisers to be selected by the lessor and lessee, and the lessor, with a view of getting an exorbitant rental or of breaking the contract, fraudulently appoints prejudiced appraisers, with the result of preventing the fixing of the rental, and after the lapse of a year brings an action for use and occupation against the lessee, who has made valuable improvements, equity will, upon demurrer to a bill by the lessee, stay the prosecution of the lessor's suit at law in order to compel the lessor to appoint fair appraisers, and fulfil the contract of renewal in its true spirit. It seems, also, that in such a case equity will enforce specifically the contract to arbitrate, the remedy at law being inadequate. Tscheider v. Biddle, 4 Dill., 55.

§ 75. As to whether or not agreements to arbitrate will be specifically enforced, see Mitchell v. Harris, 2 Ves., 129 (1793); Milnes v. Gery, 14 Ves., 400 (1807); Morse v. Everest, 6 Madd. Ch., 25 (1821); Greason v. Keteltas, 17 N. Y., 491 (1858); Gourlay v. Duke of Somerset, 19 Ves., 431; Agar v. Macklew, 2 Sim. & Stu., 418; Hopkins v. Gilman, 22 Wis., 476 (1868); Biddle v. Ramsey, 52 Mo., 153 (1873); Scott v. Avery, 5 H. L. Cas., 811; Dawson v. Lord Otto Fitzgerald, 9 Law Rep., Exch., 7; S. C., 3 Cent. L. J., 477; Youmans v. Girard, etc., Ins. Co., 3 Cent. L. J., 792; Randel v. Ches. & Del. Canal Co., 1 Har. (Del.), 275; Contee v. Dawson, 2 Bland (Md.), 273; Gray v. Wilson, 4 Watts (Pa.), 39; Howe v. Daniels, 3 Ala., 239; Scott v. Liverpool Corp., 3 De Gex & J., 331; Caledonian, etc., R'y Co. v. Granoch, etc., R'y Co., 2 L. R., S. C. App. Cas., 347; Livingstone v. Ralli, 5 El. & Bl., 132.

§ 76. A clause in an insurance policy which provides that a question as to the cause of the death of the insured should be submitted to the surgeon-in-chief is valid, and is such an agreement as the courts are bound to enforce; the decision of the surgeon-in-chief is a condition precedent to the recovery on the policy. Campbell v. American Popular Life Ins. Co.,* 1 MacArth., 250.

$77. It seems that an agreement to refer, which is so imperfect as not to be specifically enforceable in equity, and for a breach of which nothing but nominal damages could be recovered at law, will not be allowed to oust the courts of jurisdiction, else there must be a failure of justice; or, in other words, courts will not permit their jurisdiction to be ousted by an agreement which, from its defects, is impotent for that purpose. Ibid.

III. THE AWARD.

SUMMARY-Certainty as to party to whom money is to be paid, § 78.— Supposed to be regular, $$ 79, 84.- Notice of time of hearing, § 80.— Service of copy presumed, § 81.— Failure to decide certain points, §§ 82, 89.- Mutuality, § 83.— Beyond the submission, § 85, 100, 101.- On an erroneous basis, § 86.- Disallowance of credits, § 87.- Finding as to title to land, § 88.- Uncertain as to time, § 89.—Waiver of objections to the validity of certain deeds, § 90.- Certainty as to parties to a transaction, § 91.- In the alternative, § 92.— Not unreasonable. § 93.—Uncertainty as to land to be conveyed, §§ 94, 97.- Proof of matters submitted, § 95.— Should find as to liability in different capacities, § 96.— Partiality, § 98.- Awarding damages for breach of contract, § 102.-Validity, may be shown by testimony of arbitrators, § 103.- Review of finding of arbitrators, § 104. — Setting aside for error, etc.. § 105-110.-Want of authority to make the submission, § 111.- Cannot be changed by arbitrators, § 112.- Right to sue before instalments become due, § 113.- Variance, 114.- Parties to suit on, § 115.- Authority of agent to sign, § 116.- Performance, must be concurrent, § 117.- May be specifically enforced, § 118.- Notice of an unregistered award, § 119.— Excuse for non-performance, § 120.

§ 78. An award directing money to be paid is not objectionable for uncertainty, in not specifically naming L. as the payee, it appearing conclusively from the record in the case in which the submission was made that he was the only person to whom any money awarded should be paid. Lutz v. Linthicum, § 121–126.

§ 79. An award is supposed to be regular until impeached. Ibid.

§ 80. Due notice of the time and place of hearing the cause should be given by the arbitrators; but the notice need not appear on the face of the award. Ibid.

§ 81. Where a statute requires a copy of the award to be served before moving for judgment, a compliance is presumed; it need not appear of record. Ibid.

§ 82. A conditional submission referred to arbitration controversies between F. and K., the latter acting for K. & Co. and for himself. Held, that it did not expressly notify the arbitrators that they were to decide individual claims of K. against F. separately from those of K. & Co., and that the award would not be set aside for their failure so to do. A conditional

submission to arbitration is not invalidated by the failure, before the happening of the condition, of the arbitrators to decide certain of the points submitted, unless such points are expressly indicated in the submission. Karthaus v. Ferrer, §§ 127-130.

§ 83. An award need not require both parties to do or not to do a particular thing. Ibid.

$84. Every reasonable intendment should be allowed to uphold an award and none indulged to overturn it. Ibid.

§ 85. Members of a partnership assigned to a trustee the principal part of the choses in action of the firm, in trust, first, to pay M., a partner, $14,610; second, to pay the firm debts; and third, to divide the balance among the partners. Subsequently they made a general submission of all their partnership differences to an arbitrator, "provided that the award so to be made by said arbitrator shall not in any way alter or affect the demands of property and assets in the hands of William B. Ogden, as the trustee of said parties, or the agreements between said parties relative to the collection of said demands." The arbitrator, by his award, postponed the payment of the $14,610 to M. to the payment of the debts of the firm, and treated the entire property of the partnership, and the rights of the partners, as if no assignment in trust had been made. Held, that the assignment, and the trust stipulations contained therein, were to be considered in law as incorporated in the articles of submission, and as limiting the authority of the arbitrator; that although all the partners were ultimately liable for the firm debts, yet, the firm being solvent, they had a right, as between themselves, to control the possession of the firm property, and to place it in possession of either partner; that having so disposed of a portion of the property by an express agreement, which they had made part of the submission, and which limited the arbitrator's authority, he had no right to disregard such limitation, and that, having done so, his award was invalid as being beyond the scope of the submission. McCormick v. Gray, § 131-133.

§ 86. An award upon an erroneous basis is wholly invalid. Ibid.

§ 87. An enumeration of credits directed by an award to be allowed amounts to a disallowance by the abitrators of such credits as are not specifically named. Carnochan v. Christie, SS 134-138.

§ 88. An award directing A. to pay B. and C. a sum of money for certain land is a sufficient finding that the title of the land is in A. and not in B. and C. Ibid.

89. An award that C. and M. are entitled to a credit, provided they shall give W. C. a clear title to certain lands, but limiting no time within which this title shall be made, is indefinite and uncertain. Ibid.

§ 90. A submission to arbitration included a controversy as to the execution under duress of certain deeds of trust, but added, that, as soon as a certain balance of account should be paid, such deeds were "to be delivered up." Held, that this was a waiver of objections to the manner in which such deeds were obtained, and justified the arbitrators in not considering the controversy as to them executed. Ibid.

§ 91. An award is not uncertain for not naming specifically the trustees required to sign, the heirs who are to receive a conveyance, and the person who was to prepare and tender the deed. These matters were to be settled by the court. Thornton v. Carson, $ 139, 140.

§ 92. An alternative award requiring the conveyance of certain property, or, in case of failure so to do, the payment of two bonds in suit, is not void for uncertainty. Ibid.

$93. An award against one who has agreed to convey a good title, requiring him to do so, is not unreasonable, although it also require him to procure other persons, not parties to the award, and over whom he has no control, to join in the conveyance. Ibid.

§ 94. An award that B. and L. reconvey or release "all lands heretofore conveyed or pledged to them by the late Gideon Dennison as collateral security," is void for uncertainty in not determining what lands were so conveyed, it being impossible to ascertain this fact from any deeds or records in the case. Lyle v. Rogers, SS 141-144.

§ 95. Correspondence between parties containing references to disputes about lands held admissible to show what matters in controversy were submitted to the arbitrators. Ibid. $96. Where claims against a party as administratrix, and also against her personally, are submitted to arbitrators, their award should specifically state the sum due from her personally and the sum due from her as administratrix, else it will be invalid. Ibid.

§ 97. An award required the payment of money by one party and the reconveyance of certain lands by the other. Held, that uncertainty as to the lands to be conveyed vitiated the award as to the payment of money, the latter being conditional upon the reconveyance being made. Ibid.

§ 98. A remark by one arbitrator, that the person in whose favor an award had been made ought to buy his winter's meat for him without making any charge, and that they (the arbitrators) had the hands of Abraham Faw (against whom the award was) so fast tied that he could not for his life get them loose, while unbecoming in the arbitrator, and disapproved by

the court, are not sufficient to set aside the award, the circumstances, and the spirit in which the remark was made, not being before the court. Davy v. Faw, §§ 145-148. See § 206.

§ 99. Equity will not set aside an award because of the omission of the arbitrators to pass upon certain matters submitted to them, such omission not being injurious to the parties. Ibid.

§ 100. It appearing in evidence that a conveyance of a lot was in fact submitted, with other transactions, for arbitration, held, that the arbiters had not exceeded their powers in decreeing a reconveyance. Ibid.

§ 101. An award is wholly bad that embraces matters not submitted, if such matters are not separable from those submitted. York, etc., R. Co. v. Myers, §§ 149–154.

$102. In an action for a breach of contract to pay in instalments of stock, reserving part of the stock for indemnity, an award is good which embraces damages for wrongfully detaining the stock reserved. Ibid.

§ 103. Arbitrators may be examined as witnesses to ascertain facts material to the validity of their award. Ibid.

§ 104. An arbitrator's decision may be reviewed. The decision of the circuit court upon objections to the report of an arbitrator may be reviewed on bill of exceptions. The United States supreme court will not review an arbitrator's mistakes either of law or of fact. Ibid. § 105. If the award is within the submission and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. Burchell v. Marsh, §§ 155-157. See § 208.

§ 106. Corruption and ignorance of the rights of the parties will not be imputed to arbitrators, because in the exercise of their discretion they award a larger sum than the court would award as damages for injuring a person's business. Ibid.

§ 107. The fact that arbitrators appointed to pass upon business controversies received evidence of slanderous words uttered by the agent of one party concerning the other party does not conclusively show that they included damages for such slanders in their award; and it will not on this account be set aside as including matters outside of the submission. Ibid.

108. If the arbitrators,, while acting in perfect good faith, have mistaken or misapprehended their duty, and injury or injustice has resulted therefrom to either of the parties, it is competent for the court to set the award aside. Torrance v. Amsden, §§ 158-161.

§ 109. If an important witness is detained by illness, and a party is besides surprised at the unexpected character of the testimony adduced against him, the arbitrators should allow him a continuance to secure his witness and the necessary rebuttal testimony. If the arbitrators refuse to do so, their award will be set aside as for their misconduct. Ibid.

$110. An arbitrator allowed for cut stone at $1.50 per foot, it having escaped his attention that it had been agreed to pay $1.75 per foot for it; and he overlooked a considerable amount of extra work in and about a portico. Held, that these errors warranted the court in setting aside the award on bill in equity. Frick v. Christian County, $$ 162, 163.

§ 111. An award, made under a submission by county commissioners to arbitrators, will not be vacated for want of authority in the commissioners to make the submission, the award having been approved and ratified by the county court, and the money awarded having been paid; especially if the complainant was a party to the submission, and consented to be bound thereby. Ibid.

§ 112. Arbitrators exhaust their powers by making a final determination of the matters submitted to them; they cannot alter an award after making it. Bayne v. Morris, §§ 164, 165. See § 193.

§ 113. An award, requiring money to be paid in instalments, provided that a bond should be given to secure payments when due. Held, that the debtor had no right to postpone giving the bond until the first instalment became due. He must give the bond immediately upon the award being made, else he is in default, and an action of debt may be brought for the sum awarded. Ibid.

§ 114. Plaintiff declared upon a covenant to submit, and produced in evidence an agreement to submit to an arbitration, "as provided in articles of submission this day executed." Held, no variance, it being shown that in truth no such articles ever existed, the words relating to them having been inserted by the carelessness or unskilfulness of the person who prepared the submission. Smith v. Morse, §§ 166–170.

§ 115. One who signed an agreement for a submission, for the purpose of settling various causes of action in which he was personally interested, is not a necessary party to a suit between other parties to the submission in reference to other and different matters embraced in it. Ibid.

§ 116. One who signed an agreement of submission prepared by another person's attorney, who represented such other person without objection during the proceedings before the arbi

trators, cannot, after the award has been made, object that the attorney had no authority to represent such other person, especially after such other person has ratified the attorney's acts. Ibid.

§ 117. Where an award directs each party to perform certain acts, performance by either party is not a condition precedent to performance by the other; the acts are concurrent, and neither party has a right to demand performance by the other without a tender of performance on his part. McNeil v. Magee, §§ 171-184.

§ 118. Awards will be specifically enforced in equity, upon the ground that they are but agreements of the parties, ascertained and fixed by arbitrators. But it seems that the plaintiff must aver a readiness and willingness to perform. Ibid.

§ 119. Notice of an unregistered award must be established by matter in pais. Ibid.

§ 120. It is not a sufficient excuse for the non-performance of an award, that the party was unable to make a deed free from his own incumbrances, the award providing a remedy by the covenants in the deed to secure the party against such incumbrances. Ibid. [NOTES.-See §§ 185-212.]

LUTZ v. LINTHICUM.

(8 Peters, 165-180. 1834.)

ERROR to the Circuit Court of the District of Columbia, County of Washing

ton.

Opinion by MR. JUSTICE STORY.

STATEMENT OF FACTS.-The original suit was an action of covenant, brought by Linthicum against Lutz, upon certain articles of agreement, made between Lutz on the one part, and Linthicum on the other part, on the 224 of October, 1828. The declaration, after reciting that Lutz, by these articles, leased certain premises in Georgetown to Linthicum for five years, from the 3d day of May then next ensuing, and a covenant on the part of Linthicum to pay therefor an annual rent of $250, the rent to be paid half yearly, averred that, by the articles of agreement, Lutz bound himself to Linthicum, that the latter should have peaceable possession of the premises, and retain and keep the same for the said five years; that Linthicum entered into possession of the premises, and held the same until the 3d day of November, 1832, when Lutz evicted and dispossessed him, etc. The articles are spread upon the record, by which it appears that they were made "by and between John Lutz, of, etc., and agent for John M'Pherson, of Fredericktown, in the state of Maryland, of the one part, and Otho M. Linthicum, of Georgetown, etc., of the other part." And it is witnessed, "that the said John Lutz, agent as aforesaid, has rented and leased, etc.," the premises to Linthicum; and, on the other hand, Linthicum covenants to pay the rent, etc., as stated in the declaration. But there is no covenant in the lease by Lutz for quiet enjoyment, as stated in the declaration; but the latter is founded upon the covenant implied by law in cases of demises. The articles conclude with these words: "In witness whereof, we, the said John Lutz and O. M. Linthicum, have hereunto interchangeably set our hands. and seals, day and date above. John Lutz, agent for John M'Pherson. [L. s.] O. M. Linthicum. [L. s.]"

The defendant Lutz, without praying oyer of the articles (without which they could not constitute a part of the declaration), pleaded general performance of the covenants; upon which an issue was joined to the country. Afterwards, the parties, by consent, agreed to refer the cause; and accordingly, by a rule of court, it was ordered "that William S. Nicholls and Francis Dodge be appointed referees between the parties aforesaid, with liberty to choose a third person; and that they, or any two of them, when the whole matter concerning the premises, between the parties aforesaid in variance, being fairly adjusted, have

their award in writing under their hands, and return the same to the court here, and judgment of the court to be rendered according to such award, and be final between the said parties." The referees so named, on the 28th of January, 1833, chose John Kurtz the third referee; and afterwards, on the same day, made their award in the following words: "We, the subscribers, appointed arbitrators to settle a dispute between Otho M. Linthicum and John Lutz, in which the executors of the late John M'Pherson, of Frederick, are interested, do award the sum of $1,129.93, to be paid to the said Linthicum in full for all expenses and damages sustained by him in consequence of not leaving him in quiet possession of the house at the corner of Bridge and High streets, in Georgetown (the demised premises), for the full term of the lease for five years. Any arrear of rent due from Linthicum to be paid by him." Signed by all the referees. Judgment was given by the circuit court for the full amount of the award so made, and costs; and the present writ of error is brought to revise that judgment.

§ 121. Where an instrument of writing is signed “J. L., agent for J. M.,” J. L. binds himself.

The question whether the articles of agreement personally bound Lutz is not presented by the pleading in such a manner as that there might not be difficulty in deciding it, if it constituted the only point in judgment. But if this difficulty were surmounted, and the articles are to be deemed properly before us, we do not see how they can well be construed not to import a personal liability on the part of Lutz for the want of any obligations contained in them. The articles purport to be made by Lutz, and to be sealed by him, and not to be made and sealed by his principal. The description of himself as agent does not, under such circumstances, exclude his personal responsibility. But this very liability was necessarily submitted to the referees, and came within the scope of their award.

§ 122. Certainty as to payee.

Several objections have been taken to the award. In the first place, it is said that the award is uncertain and not mutual and final; that it does not state by whom the money awarded is to be paid, whether by Lutz or by the executors of M'Pherson; and that it does not find the arrears of the rent due, and to whom due; and that it does not appear to be an award made in this cause. We are of opinion that these objections are ill founded. The award is sufficiently shown to be an award in this cause; for no other cause directly appears to have been pending or in dispute between the parties, and the subject matter of this very suit is directly within the terms of the award. The award being made in this suit, and applicable in its terms to it, it is sufficiently certain that the money is to be paid by Lutz, for there is no other person on the record to whom it can be judicially awarded to be paid. The award is also mutual and final as to all the matters referred. It is not a general arbitration, at the common law, of all matters in dispute between the parties, but a specific reference of the matters in dispute in the cause pending in court, under a rule of court. Now, those matters were the damages and losses claimed by Linthicum for the breach of the covenant, and the sum awarded is expressly declared to be "in full for all expenses and damages" so sustained. As to the arrears of the rent due from Linthicum, they constituted no part of the matters submitted. They were not in controversy in the suit. And the statement in the award, as to any arrears of rent, was merely an exclusion of a conclusion, which might possibly have been drawn, that the referees had deducted such arrears in making their award.