on the money counts, but the remedy is on the contract. 10 Johns. R. 205, Wood v. Edwards; 12 Johns. 27; 14 do. 326, this is the principle. Also same principle, Champlin v. Butler, 18 Johns. R. 169; so 13 do. 15. Jewell and others v. Schroeppel, 4 Cowen, 564-567, confirms the principles of this article, the acts of the parties raised a new case not within the sealed contract. § 7. Con. In the following instance the parties made a new case, &c. The plt. declared the deft. was indebted to him in account, and in consideration thereof and that the plt. would accept the labour of the deft. as a plumber and glazier, at reasonable prices to the extent of the debt, the deft. promised to do the work. Counts for money had and received, &c. It was proved the plt. by deeds had assigned certain premises to the deft. for a sum therein named. The deeds stated that sum to have been well and truly paid, and released the deft. therefrom. Parol evidence was given to show, that in fact part of the purchase money had not been paid, but that it was agreed by parol between the parties when the deed was executed, that part of the purchase money should be retained by the deft., and that he should do the work for the plt. to that amount. Held, that : if this evidence was admissible, still it did not support the de- Two 13. Con. Where the deft. in his action departs from the special contract and recovers on the general counts, the plt. afterwards I. CH. 9. Art. 22. Con. I. CH. 9. may adopt the same course; here both give up the special contract: this they may do. The plt. may sue on the implied promise or the special contract, if it contain no more than the law implies. 1 Pick. R. 57, 58; p. 118, 121. ART. 2. v, Tuttle. CHAPTER X. ACTION OF ASSUMPSIT. AGISTMENT. § 8. Con. Certiorari to a justices court. Tuttle brought assumpsit against Eastman for depasturing and keeping on hay 1 Cowen, 248- the deft's. cattle on land in the possession of Tuttle, the plt., at 249, Eastman the deft's. request; the pasturing, keeping, and request were proved as laid; the deft., Eastman, offered to prove that the title of the land on which the plt. lived and performed the services, was at the time in the deft. This was overruled, and verdict. Judgment for the plt. Judgment affirmed. ART. 2. Clarkson v. CHAPTER XI. ASSUMPSIT. AGREEMENT WRITTEN, HOW REQUIRED OR NOT. § 1. Con. Assumpsit for the deft's. refusal to receive and pay for three hundred barrels of flour sold to him by the plt. Held, on a cash sale of goods, the vendee is not entitled to have possession of them till he pays for them. Relied on the said case of Langfort v. Tiler's admr., and Sands v. Taylor, 5 Johns. R. 410-11. Same concurrent promises, 6 Cowen, 110-118, Chapman & al. v. Lathrop. But if to pay on delivery of the goods, and so the delivery and payment are concurrent acts, yet if the vendor deliver them without payment, the property passes and the condition is waived. Aliter, if obtained by fraud. Many cases cited and the reporter's notes added. 6 And 6 Cowen, 250-254, Rapelye and Smith, survivors of Lawrence, v. Mackie and others, assumpsit for goods sold and delivered and goods bargained and sold. August 21, 1822, the plts. sold sixtysix bales of cotton to the defts. marked G. G. & Co. As evidence of the sale, there was a bill of parcels delivered pro forma; charge thus sixtysix bales, say 19,800 lbs. $12 per hundred, $2378, one per cent. off.' Defts. paid $18,000 at the time. The plts'. cotton was in three stores at Brooklyn; one kept by A, there sixtynine bales-mark G. G. & Co.; one kept by B, and one by C: in C's thirty bales, same mark. Soon after the thirty bales were burnt. Defts. demanded sixtysix bales: refused. Weight not exactly ascertained. Held, Art. 2. the loss by fire was the plts'. ; that there had been no delivery I. CH. 11. of the cotton, and the thirty bales were not identified in the contract and it might have been satisfied by other thirty bales. If the goods are to be weighed, &c. there is no delivery or change of property, though part of the price be paid; and if part be delivered, the other part not yet ascertained will not pass. It is enough it appears in the case something more is to be done, between buyer and seller, previous to delivery. Defts. could not have insisted on having the thirty bales in C's keeping if not burnt. Court cited 15 John. 349; 6 East, 614; 11 East, 210; 12 East, 614; 13 East, 522; 2 M. & S. 397; 4 Campb. 237. 1. Con. Same principle in Maryland, 4 Har. & Mc H. 421, ART. 4. 422, Newman v. Morris, decided on the statute of frauds, 29 Con. Ch. 2. See Rondeau v. Wyatt, sect. 12. 3 Pick. R. 83-95, Cabot & al. v. Haskins & al. This clause applies to a promise by one to pay money to another as well as to mutual promises. 3. Con. If an executor promise to pay the debt of the 4 Pick. 97– testator, and he has given bond to the judge, &c. to pay the 100. testator's debts and legacies, this case is not within the statute of frauds, for the bond is an admission of assets. § 1. Con. The giving further time to perform a contract is ART. 5. no waiver of any of its stipulations. 15 Johns. R. 200. A Con. deed is not affected by a parol agreement. Id. 7. Con. Part performance of a parol agreement relating ART. 9. to land does not take the case out of the act, so as to sustain an Con. action at law for damages for the breach of the contract; but 1 Pick. R. assumpsit lies for the expenses incurred in such part perform- 328, 332. ance. Was a parol lease of a messuage for five years, rent $350 a year, tenant to make stores, &c.; did make them, &c. Equity in this case would have enforced the contract. Parol agreements may be valid by referring to prior written Pages 476–481 ones, notwithstanding the statute of frauds. No writing is necessary where the contingency may happen 1 W. Bl. 353. within a year. Holt, 326; 1 P. Wms. 620. A memorandum in writing of a contract for the sale of lands ART. 13. is not a sufficient memorandum within the statute of frauds, un- Con. less it some way shews who are the two parties to the contract. 1 N. H. Rep. 157–161. CHAPTER XII. ACTION OF ASSUMPSIT. APPRENTICES. 8. The master of an apprentice is bound to pay for medi- ARt. 1. cal attendance on the apprentice, from the very nature of the Con. I. CH. 12. relation between master and apprentice, and the father of the Art. 1. apprentice is only bound, when the services have been rendered Con. at his request; otherwise as to hired servants, the employer is not bound to pay for medical attendance. See ch. 47. a. 3. s. 10; 1 Strange, 99; 1 Ves. 83. 4 Rand. 423-427. ART. 1. Head v. Muer, &c. 4 Rand. 95103. CHAPTER XIII. ACTION OF ASSUMPSIT. ARBITRATIONS AND AWARDS. 3. An award cannot be set aside in law or equity except, 1. For errors apparent on the face of it. 2. Misconduct in the 3 Rand. 22-36, arbitrators; or some palpable mistake. 3. Or fraud in one of the parties. 4. Nor in equity for objections available at law, omitted by the party without any excuse. 5. Equity cannot revise a decision of a law court. See art. 15. s. 21. and ch. 34. a. 2. s. 8, principle seems different. Equity has jurisdiction to decree specific execution of an award, where the remedy at law is inadequate. 2. Where parties submit a question of law alone to arbitration, the award is binding, though contrary to law. 3. Awards are to be construed liberally. 4. Tenants in common of personal estate cannot have partition at common law, hence a court of equity is the proper tribunal to decree a partition of it. 2 Jacob & W. 5 Serg. & R. 51, Large v. Passmore. ART. 2. 3 Barn. & § 4. Held, on a bill to impeach an award, evidence of the merits only is to be received so far as it throws light on the conduct of the arbitrators. It is irregular for two of them to meet without notice to the third, though this is not sufficient to set the award aside, if the substance be settled in his presence. Semble. § 5. Judgment on bond by warranty of attorney. The parties submitted all matters in dispute to A, B, and C, their award to be final. Held, this reference was on the act of 1705, and not at common law, though not made directly under a rule of court. See 6 Binn. 422. § 3. Where there is a submission, the award to be made in a time named; before this time is expired, the parties, by another deed, may extend it. 2 Barn. & Cres. 179-189; see ch. 141. a. 3. s. 14; ch. 141. a. 3. s. 13; 1 Taunt. 656; ch. 111. a. 2. s. 2; 2 Barn. & Cres. 345. The death of one party to a submission determines the arbitrator's power. P. 801. If a party receive the costs of reference by the rule thereof awarded, he cannot move to set the award aside. § 5. Time enlarged by the arbitrator being authorised by Cres. 144, 407. the parties. Cause referred to A, and B, they to choose a third referee. A named one and B another, and they drew lots to decide which, &c. Held this mode was bad. 4 Barn. & Cres. 103. 6. If parties submit by writings, not sealed, and insert a penalty, it is incurred by one who revokes. Art. 2. 7. If arbitrators refuse to hear proper evidence it is I. CH. 13. misconduct and vitiates their award. So partiality or corruption in any one of the arbitrators, or the concealment of material facts by either party, if such facts would produce a different award, is cause sufficient for setting aside the award, 17 Johrs. R. and under the plea of no award, the deft. may show that the 405-16 do. arbitrators awarded on a matter not submitted to them. 227. 8. The revocation of arbitrator's authority is a contempt, 1 Jacob & the submission, being by rule of court. Walker's R. 511. 9. Con. And 2 N. H. Rep. 26. But if the parties make ART. 4. a private agreement to submit all demands to arbitration, and Con. one is so omitted, an action lies thereon, and for the breach of the agreement; and the award on the other demands is binding, if the spirit and mutuality be not thereby violated: and the surety in such an agreement need not be notified of the setting of the referees. 97-429. All the referees must meet and hear, but a major part may sign. 484. 17 Mass. 458. § 4. Con. Where parties referred certain matters in dispute ART. 5. to arbitrators to award by a certain day, and if not agreed to Con. choose an umpire, they finding they could not agree chose 1 Rand. 449– an umpire, who made his umpirage before the day appointed 456. for the arbitrators to make their award. Held, this umpirage was good. 2. An award that requires the surety to pay, as well as the principal, is mere surplusage as to the surety; award good. 3. Everything is to be presumed in favor of an award was an action on the arbitration bond against the surety, the principal being dead; pending the action, the surety died, and the suit was revived against his administrator. Plea, nil debet, and a special verdict. Judgment in the superior court for the administrator, reversed in the supreme court of appeals. The court said they could find no direct authority for the umpire's so early making his umpirage, but decided on general principles. But see ch. 141. a. 3. s. 18. A and B submit all matters in difference between them in a 4 Rand. 275281, Rizon v. particular pending suit to C and D and to such umpire as they Berry. - shall choose, and their award to be made the judgment of the court, and the two arbitrators and umpire act together and make a joint award. It is valid; and though the award does. not state the third person signing the award had been chosen umpire by the arbitrators, that fact may be proved by other evidence. 2. If the third person signing were a mere stranger the award would be good. It was proved by parol evidence the third person was chosen umpire. If a stranger join, this does not vitiate the award. As to the joining, the Beck v. Sarsubmission was to A and B and their umpire, and their award geant, 4 to be the judgment of the court. Authority, Bulstr. R. 184; see Soulsby v. Hodgson, ch. 141. a. 3. s. 17. Vol. 5. Taunt. 232. |