Boor ex rel. Hall v. Wilson

Brent, J., delivered the opinion of the Court. This is an action upon an award. The defendant among other defences, alleges in his fourth and fifth pleas that the arbitrators did not before making their award appoint any time for hearing the defendant and his witnesses, and proof touching the matter referred, and that the arbitrators refused to appoint any such time, although requested so to do by the defendant. Upon a demurrer to these pleas the case was brought up to this Court, ( 40 Md., 483 ,) and it was then held that the pleas were good, and ought to have been allowed.

The Court also says in its opinion, “if the submission by its terms has dispensed with notice, or the necessity of adducing testimony, of course no such defence could be made.” When the case came back for a new trial, the plaintiff to avail himself of this part of the decision, filed to these pleas his second, third, fourth and fifth replications. Issue was taken to the second, fourth and fifth, and a demurrer entered to the third. This demurrer being sustained, presents the first subject-matter of appeal. While the third replication may be objectionable upon the ground of informality, it is not necessary to pass upon this question, as the points sought to be presented by it are sufficiently raised by the second, fourth and fifth replications, to which issue was taken.

It is but an amplification of them, and the ruling of the Court upon the demurrer has not injured the plaintiff, or narrowed his cause of action. The second and fourth replications present the question, whether the notice set out in the pleas had or had not been waived, or was unnecessary by and under the agreement of submission. And the ³¹⁴ fifth, replication, whether the defendant by his presence before the arbitrators, and by his acts, had not waived it. Under this state of the pleading, the plaintiff had the right to ask of the Court instructions upon the construction of the agreement of submission, and upon the facts, as fully as he could have done, had the demurrer to his third replication been overruled.

As this case will be sent back for a new trial, before leaving the questions arising upon the pleading, we will dispose of the demurrer to the defendant’s tenth plea. We concur with the Court below in its ruling upon this demurrer. ' The tenth plea is in every respect bad. It is no answer to any of the counts in the narf., but seeks to avoid the responsibility of the defendant by setting up matters wholly extrinsic, and outside of the agreement and award as declared upon. The theory upon which this- case seems to have proceeded, is that the award is invalid, because at the time the arbitrators went upon the land to view it, there were no articles of submission before them, and they were only informed by parol what duties had been imposed upon them by the submission.

We have not been referred to any authority in support of this view, and cannot give it our sanction. The true question is, whether the parties under their hands and seals have submitted the matter in dispute to arbitration, and whether tbe award of the arbitrators is in strict conformity to the articles of submission. If both of these essential facts appear affirmatively, it is of no importance whether the arbitrators were informed only verbally of the contents of the agreement of submission, or whether the paper was actually before them or not in their proceedings to make out their award. Now in this case the parties agreed, under their hands and seals, to submit to certain arbitrators mutually chosen, with power to select an umpire, the valuation of thirty-five