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(217 Pa. 545) REAL ESTATE TITLE INS. & TRUST CO.

v. McNICHOL. (Supreme Court of Pennsylvania. April 22,

1907.) ARBITRATION AND AWARD-UNCERTAIN AWARD.

An agreement for arbitration provided that the amount found should be considered a debt presently payable, for which judgment might be entered. Held, that an award providing that to an amount fixed other items might be added without fixing their amount was void for uncertainty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Arbitration and Award, $$ 298–309.]

Appeal from Court of Common Pleas, Phll. adelphia County.

Action by the Real Estate Title Insurance & Trust Company against Patrick McNichol. From an order discharging rule to strike off judgment, defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Wm. Morgan Montgomery and John C. Bell, for appellant. J. H. Brinton and Geo. McCurdy, for appellees.

BROWN, J. The partnership of D. & P. McNichol was dissolved by the death of Daniel McNichol on or about April 9, 1900. The partnership accounts not having been settled, and there having been various matters in dispute between the executors of the deceased partner and the appellant, they agreed on December 6, 1901, in writing, to submit the settlement of the partnership accounts and the various matters in dispute between the parties in relation thereto to an arbitrator under a stipulation that this decision should be final and conclusive, and that the amount found by him to be due from either party to the other should be considered a debt presently payable, for which judgment might be entered by the party in whose favor the award should be made. On August 16, 1902, the arbitrator or referee made his report awarding to the estate of Daniel McNichol the sum of $3,679.$1, but to this definite award he added the following: "To this sum are to be added one-half of any amounts received by the surviving and liquidating partner, Patrick McNichol, since February 11, 1901, for account of the old firm, together with one-half of any book accounts and municipal claims owned by the firm." This at once destroyed the certainty of the award.

It was the intention of the parties to the submission that the referee should pass upon the unsettled partnership accounts and the various matters in dispute, and finally settle, by a definite and certain award, the liability of the surviving partner, or the representatives of the deceased, and for the amount of the award judgment was to be entered against the party against whom it might be made. It is a cardinal requisite of every

award that it be certain. Henness v. Meyer, 4 Whart. 358. The stipulation in this case was that the amount found by the referee should be considered a debt presently pay. able, for which judgment might be entered against the party found to owe it. But for what amount could judgment be entered on this award? No definite amount was found to be due by Patrick McNichol. The arbitrator directs that to the sum he finds due other items be added, without ixing their amount. He clearly regarded these items as being among those he was to settle, or he would not have directed them to be added to the sum awarded, and, if they were within the terms of the submission, it was his duty to definitely find their amount and embody it in his award. He could have found what amounts had been received by the surviving partner since February 11, 1901, on account of the old firm, and could readily have ascertained the amount of the book accounts and munic ipal claims owned by them. Instead of so finding, though he makes these items the subject of liability by the appellant, he leaves what they amount to for future ascertainment by someone else. This may cause litigation between the parties, though the very purpose of the agreement was to settle all the partnership matters without any litigation. The award, if allowed to stand, instead of preventing it, may lead to it, for, under the direction of the referee unascertained items, which may be disputed, are to be added to the award,

The very essence of awards is certainty. They are to put an end to controversy between the parties and are to be certain and final. Spalding v. Irish, 4 Serg. & R. 322. In Zerger v. Sailer, 6 Bin. 24, there was an award for £60 “to be paid by the plaintiff de ducting an unsettled account of the plaintiff's against the defendant.” The award was held to be void, and it was said by Tilghman, C. J.: “It is neither certain, final, nor conclusive. How much was to be paid by the plaintiff to the defendant? No man can say. Before that question is answered, you must settle the plaintiff's account and the settle ment of that action may involve the parties in another suit." So here, to determine what moneys were received by the liquidating partner since February 11, 1901, and what book accounts and municipal claims are owned by the firm and held by the surviving partner, may involve him and the representatives of a deceased partner in another suit. The judgment entered on this award should have been stricken off. No reason was given by the court for allowing it to stand.

The first and second assignments of error are sustained. The order of the court below discharging the rule to strike off the judgment is reversed, and the record is remitted, with direction that the said judgment be stricken off.

(80 Conn. 716)

order it appeared that the purchase price BLOCH V. DE LUCIA.

was to be paid in installments, payable two, (Supreme Court of Errors of Connecticut. four, six, and eight months from date. The June 5, 1907.)

amounts thus payable were further witness. 1. PRINCIPAL AND AGENT - AGENCY — Evi. ed by five negotiable notes, to which the DENCE,

name of the defendant was signed, and The question whether an agency has been created by the conduct of the parties is a mat

which were delivered to the plaintiff's agent. ter of fact, to be determined by the jury. That the name of the defendant was signed

(Ed. Note.-For cases in point, see Cent. Dig. by his son, Martin De Lucia, who as clerk vol. 40, Principal and Agent, $ 722.)

and bartender was in charge of the defend2. APPEAL-REVIEW-QUESTIONS OF Fact. ant's saloon. That Martin, having arranged An assignment of error that the court

with the plaintiff's agent the terms of the erred în deciding from the facts found that an alleged agent had authority from defendant

sale, told him he would have to consult bis to enter into any contract with plaintiff does father, the defendant, before closing the not present any question of law on appeal, transaction, and the two then went to the dewhere it appears that from the facts found the court might properly draw the conclusion

fendant, who was in an adjoining room in that defendant authorized such agent to act

the same building, where he worked as a for him; such conclusion being one of fact, for cobbler when not engaged in tending his the trial court.

saloon, and there, in presence of plaintiff's (Ed. Note.-For cases in point, see Cent. Dig. vol, 3, Appeal and Error, § 3318.]

agent, the defendant and his son conversed.

The defendant spoke with difficulty very Appeal from District Court of Waterbury; | little broken English, and the conversation Frederick M. Peasley, Judge.

was carried on in his native tongue, as was Action by B. K. Bloch against Frank De

his custom when his son wished to consult Lucia to recover the price of goods sold.

him about purchases, which language was From a judgment for plaintiff, defendant ap unknown to the plaintiff's agent. Martin, peals. Affirmed.

with the agent, thereupon returned to the Francis P. Guilfoile, for appellant. Mi

saloon, where Martin signed his father's chael J. Byrne, for appellee.

name to the order and promissory notes, and

upon delivering the same to the plaintiff's HAMERSLEY, J. There is no material agent received from the agent the warehouse question of law presented by the record in certificate, which certified that the five barthis case. The complaint alleges that on rels of whisky purchased and described in May 16, 1903, the plaintiff sold to the defend the contract of sale were stored in the desigant, at an agreed price of $132.55, five bar nated United States bonded warehouse for rels of whisky in bond, and delivered to the account and subject to the order of the dedefendant a United States bonded warehouse

fendant, Frank De Lucia, and placed this certificate, which entitled the defendant, up

certificate in the defendant's cash register, on presentation thereof, to have said whisky

where it remained until after this action was delivered to the defendant in accordance commenced. The defendant daily removed with its terms; that said whisky remains from bis cash register, where said certificate in said warehouse, and the defendant still was kept, the proceeds of each day's sale. holds said certificates; that the defendant has He spent some time in his saloon when his not paid any portion of said purchase price, bartenders were away, and usually spent and the same is wholly due and unpaid. The several hours in his saloon each evening, answer admits that the defendant has paid waiting upon customers. The defendant reno part of said purchase price, and denies fused to pay each of the five notes as they each of the other allegations. The trial fell due. The foregoing are in substance the court found the issues thus raised by the evidential facts which the court incorporatpleadings for the plaintiff, and adjudged that ed in its finding in pursuance of the defendthe plaintiff recover the amount of said pur ant's request for a finding. It further apchase price. This judgment is the true con pears from the record that the defendant, his clusion of the law upon the facts as alleged son Martin, and the plaintiff's agent all testiand found, and must be affirmed, unless it fied upon the trial, in chief and upon crossappears from the record that the trial court examination, in respect to the conduct of erroneously decided adversely to the defend the parties and the disputed question of ant some question of law which was dis agency, and that the court found from the tinctly raised at the trial and which is spe evidence that the defendant's son acted as cifically stated in the reasons of appeal, and the defendant's agent in the transaction of that such error is a material one or inju sale. The question whether or not an agency riously affected the defendant.

has been created by the conduct and acts of It appears from the record: That the al the parties is a matter of fact depending upleged contract of sale was made by a sell on all the evidence in the case, and as such ing agent of the plaintiff at the place of is to be determined by the trior of facts; i. business of the defendant, and its terms con e., the trial court or the jury, as the case may tained in a written order signed by the plain be. Torry V. Holmes, 10 Conn. 499, 513, tiff's agent and to which the name of the de General Hospital Society v. New Haven fendant was signed as purchaser. By this Rendering Co., 79 Conn. 65 Atl. 1065.

66 A.-49

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The only error in deciding any question of tenement and living apartments," for law (aside from questions of evidence), speci monthly rent of $25; that the tenement menfied in the reasons of appeal, is expressed in tioned in the plaintiff's bill of particulars is varying forms, and is in substance this: the tenement referred to in the lease; and The court erred in deciding from the facts that the defendant "Ida Rhein had paid to found that Martin De Lucia had authority the plaintiff $25 for the rent of the store and from the defendant to enter into any contract tenement, No. 51 John street, for said month with the plaintiff. This assignment does not, of October, in total fulfillment of the terms under the circumstances of this case, present of said lease." The plaintiff's reply admits a question of law. It does not clearly ap the execution of a lease to Mrs. Rhein of the pear from the finding that in drawing its grocery store, but denies that when said lease inferences of fact the trial court has violated was executed it contained the words "also the plain rules of reason, or that some fact the three rooms in the rear of said store and found is inconsistent with the conclusion used and to be used as a tenement and living reached. Metcalf v. Central Vermont Ry. apartments," and alleges that if said words Co., 78 Conn. 614, 619, 63 Atl. 633. On the appear in said lease they were inserted after contrary, it appears that, in view of the facts he had signed the same without his knowlthus found, and of all the inferences the edge or consent. The case was tried upon court might properly draw from them in con these pleadings, and the court found that nection with the incidents of the trial the the words "also the three rooms in the rear conclusion that the defendant authorized his of said store and used and to be used as a son to act for him is one of fact, which the tenement and living apartments” were concourt might reach without adopting any tained in the lease at the time of its execuerroneous principle of law and without viola tion; that the lease was read to the plaintiff ; tion of the plain rules of reason. General and that he took it and appeared to read it Hospital Society V. New Haven Rendering and handed it back to the attorney who had Co., 79 Conn. 65 Atl. 1065. The rulings drawn it, with the remark, “It is all right.” upon evidence were correct or harmless. The and then signed it. The court also found exceptions to the finding are not supported by from something which appeared in the evithe record.

dence that the plaintiff is a poor reader of There is no error in the judgment of the English, and did not notice or comprehend district court of Waterbury. The other that the quoted words were in the instruJudges concurred.

ment, and that he did not knowingly agree that they should be included in it, and that

he understood that the lease was a lease of (80 Conn. 26)

the store alone. The plaintiff, after the MUELLER V. RHEIN et ux.

trial, at the suggestion of the court, amend(Supreme Court of Errors of Connecticut.

ed his reply by adding "or if said words apJune 5, 1907.)

peared in said lease when it was signed ESTOPPEL-EQUITABLE ESTOPPEL-TERMS OF it was without the knowledge or consent of LEASE.

the plaintiff, who never knowingly agreed Where, in an action for room rent, the

that said words should be included in said tenants pleaded a written lease of a store and the rooms and payment thereunder, on proof lease, and never knowingly agreed that the that the landlord executed the lease, he was rental of said three rooms in the rear of the estopped to assert he never knowingly con

store to be used as a tenement should be insented that it and the rental thereunder should include the rooms; no fraud or improper con

cluded in said sum of $25, which, according duct on the tenants' part being charged.

to the plaintiff's understanding, was to be

the monthly rent for said grocery store only.” Appeal from City Court of Hartford; Her.

The defendants having declined, to offer bert S. Bullard, Judge.

further evidence upon the issue thus attemptAction by John Mueller against Rudolph

ed to be raised, although given an opportu. Rhein and wife on the common counts to re

nity to do so, the court ruled that the lease cover a month's rent of a tenement of three

was invalid, upon the ground that there was rooms. Judgment for the plaintiff, and ap

no meeting of the minds of the parties, that peal by the defendant. Reversed.

it furnished no defense to the action, and J. T. Robinson and L. H. Katz, for appel- rendered judgment for the plaintiff. lant. J. L. Barbour, for appellee.

After proof that he executed the lease set

up in the answer, the plaintiff was estopped THAYER, J. The plaintiff's bill of particu to deny that he was bound by its terms. No lars claims rent for the month of October, fraud or improper conduct or act on the 1906. The answer of the defendants alleges part of the defendants inducing the plaintiff that the plaintiff executed a written lease to to sign the lease is alleged, and, if he signed Ida Rhein, one of the defendants, wherein it without knowing its terms, it would apit was stipulated that she was to have "the pear to have been through negligence so gross store occupied and used as a grocery situated that a court of equity upon proper pleadings and located at No. 51 John street, in said would refuse to cancel or correct the lease. Hartford, also the three rooms in the rear It is unnecessary to determine this question. of said store and used and to be used as a however. This is an action at law for rent,

and no such relief is asked for. The defendants proved that they occupied the premises in question under a written lease under seal, and that they had paid in full the rent reserved in the lease. They were therefore entitled to judgment. The court erred in ruling that the lease afforded no defense to the action.

The judgment of the city court is reversed. The other Judges concurred.

(80 Conn. 44)

HARMON V. HARMON et al. (Supreme Court of Errors of Connecticut.

June 5, 1907.) 1. PERPETUITIES - REMOTENESS OF LIMITATIONS.

Testator gave all his property to a trustee to pay the interest and income thereof to testator's wife and daughter, during their lives, in equal proportions. The will provided that, if the daughter should survive the wife, then the whole income should be paid the daughter, and after the death of both wife and daughter the residue of the estate should go to the lawful heirs of the daughter. Held, that the gift to the lawful heirs of the daughter was void as contravening the statute of perpetuities.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, $ 18.] 2. WILLS—DISPOSITION OF VOID BEQUESTS.

Where a gift by way of remainder was void as a violation of the statute against perpetuities, it became intestate estate, and vested in the heirs of the testator at the time of his death.

(Ed. Note:-For cases in point, see Cent. Dig. vol. 49, Wills, § 2165.] 3. SAME-ELECTION-PROVISION FOR SUBVIVING WIFE.

The acceptance and enjoyment by the widow of a provision of the will expressly made in lieu of dower, without having claimed any further interest in the estate, debarred her from any share under the statute in the testator's personal estate.

[Ed. Note.-For cases in point, see Çent. Dig. vol. 49, Wills, § 2074.]

Case Reserved from Superior Court, Hartford County; William $. Case, Judge.

Action by George A. Harmon, trustee, against Israel Harmon and others. On reserved questions. Questions answered.

Hugh M. Alcorn, for plaintiff. Walter H. Clark, for Israel and Rufus Harmon and others. Wiam H. Teete, for Sarah C. Stiles, executrix, and others.

should survive my said wife then thereafter the whole of said rents, profits, interest and income shall go and be paid over to my said daughter during her life, and after the death of both my said wife and said daughter, the said trustee after retaining enough of my estate to pay him the sum of five hundred dollars, as a reward and compensation for executing the duties of the aforesaid trust, shall deliver and transfer the remainder and residue of said estate to the lawful heirs of my said daughter, Sarah E. The above bequest to my said wife is to be received by her in lieu and full satisfaction of her claim to dower in my estate." Mary Harmon, the testator's widow, died October 8, 1858. His daughter and sole heir at law, Sarah E. Denison, died March 11, 1905, leaving neither husband nor children, and leaving a will, the residuary legatee and the executor of which are parties to this suit. Her estate is in process of settlement in the probate court of the county in Massachusetts where she resided at the time of her death. Other parties to this suit are the administrator c. t. a. of the estate of said Julius Harmon, the children and the representatives of children of deceased brothers, and of a deceased sister of the testator, who survived him, and children and the representatives of children of a half-brother and of a half-sister of the testator's first wife, who survived her. The plaintiff is the successor of the trustee named in the will, and has now in his hands in this state personal property of the value of $3,250 and real estate in Massachusetts of the value of $250. The advice originally asked for by the complaint was whether the property in the trustee's hands should be distributed to the lawful heirs of Sarah E. Denison, as determined by the laws of Massachusetts, where her kindred of the full and half blood would share equally in her estate, or by the laws of this state, which would exclude her kindred of the half blood. Subsequently, by amendment, the plaintiff asked advice, first, as to whether the attempted disposition of the remainder after the death of Sarah E. Denison contravened the statute of perpetuities, and, if so, when and in whom the title to the remainder vested; and, second, whether, if such remainder was intestate estate, any portion of it vested in the widow of the testator and should be distributed to her heirs.

By the repeated decisions of this court the testator's attempted gift of the remainder of the , of his ter, "to the lawful heirs of my (bis) said daughter," was void by our statute against perpetuities in force when the testator made his will and when he died. Alfred v. Marks, 49 Conn. 473; Leake v. Watson, 60 Conn. 498, 21 Atl. 1075; Gerard v. Ives, 78 Conn. 485, 62 Atl. 607.

By the laws of this state said remainder was intestate estate, and vested in the heirs

HALL, J. Julius Harmon died testate at Suffield, in this state, November 22, 1842. By his will, dated November 22, 1842, he gave

est and income thereof annually to his wife ter

, Sarahs tele Denison, leaving no children,

and his daughter, Sarah E. Denison, during their lives, in equal proportions. Then followed this language: "If my said wife should survive my said daughter and my said daughter should die leaving no children, then the said share of my daughter shall go to my said wife during her life, but if she, my said daughter, should leave children, then to go to said children, and if my said daughter

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of Julius Harmon, at the time of his death, peal by the defendant. Judgment set aside.
and the personal property in the hands of and judgment for defendant ordered.
the plaintiff trustee should be delievered by In 1899 the plaintiff was by the courts of
him to the administrator c. t. a. of the estate New York granted to separation from the de-
of said Julius Harmon.

fendant, her husband, and awarded the cusAs to the disposal of the real estate in tody of their minor son. By the judgment it Massachusetts, of the value of $250, over was further ordered, adjudged, and decreed which we have no jurisdiction, we give no ad- that the defendant from and after the entry vice.

thereof should pay to the plaintiff for her The gift to the widow of at least one-half, maintenance and support and the mainteand possibly the whole, of the income of the nance and education of said son the sum of entire estate during her life, was expressly $22.50 per week, to be paid into the hands made in lieu of dower, and was a valid gift, of the plaintiff's attorneys of record on each which she accepted and enjoyed, apparently and every Monday. It was further ordered, without having claimed any further interest adjudged, and decreed that the plaintiff have in the estate. The disposal of the entire leave to apply from time to time for such income of the estate during the lives of nisorders at the foot of the judgment as might wife and daughter was inconsistent with an be necessary for its enforcement and for the intention on the part of the testator that the protection and enforcement of her rights in former should receive a further one-third the premises. Section 1771 of the New York share of his estate upon his death. The ac Code of Civil Procedure then in force, under ceptance and enjoyment by the widow of the which this order for payments to the wife provision of the will for her benefit, without for her benefit and that of her son was made, having claimed any further interest in the provided that in actions for a separation the estate, debarred her from any share under court might either in the final judgments or the statute in the personal estate of the tes- by orders made from time to time before such tator. Leake v. Watson, supra; Walker v. judgment give such directions as justice reUpson, 74 Conn. 128, 49 Atl. 904; Grant, quired between the parties for the custody. Adm'r, v. Stimpson, et al., 79 Conn.

care, education, and maintenance of any of Atl. 166.

the children of the marriage, and, where the These answers to the inquiries propounded action should be brought by the wife, for her by the amendment to the complaint render it support. It was further provided that the unnecessary for us to consider the other ques court might upon the application of either tions asked.

party, after due notice to the other, by order The superior court is advised to render annul, vary, or modify such directions. The judgment in conformity with the above right of the defendant to make such an apopinion. No costs will be taxed in this court. plication was conditioned upon leave of the The other Judges concurred.

court to make it having been first obtained.
Section 1772 provided that the court might

require the husband to give security for the (80 Conn. 1)

payments which he might be directed to make SISTARE V. SISTARD.

as aforesaid, and that, in case of a failure

on his part to make payments or give secur(Supreme Court of Errors of Connecticut. June 5, 1907.)

ity as directed, his personal property and the

rents and profits of his real property might JUDGMENT-FOREIGN JUDGMENTS-ENFORCE

be sequestered, a receiver thereof appointed, MENT. A decree for the payment of maintenance

and the property thus sequestered applied which is inconclusive in its character by reason under the direction of the court to the satisof the reservation to the court which made it

faction of the payments ordered as justice of the unrestricted right to change or annul it

should require. Section 1773 further proat discretion, and which is not enforceable in the state of its origin except by special pro

vided that where a husband was in default cesses, exclusive of execution, or judgment of his payments, and it appeared presumpthereon and execution, is not a decree creat tively that the proceedings specified in secing such a debt of record as will justify extraterritorial enforcement.

tion 1772 would be ineffectual, the court [Ed. Note.-For cases in point, see Cent. Dig.

might in its discretion institute proceedings vol. 30, Judgment, $ 1497.)

against him for his punishment for contempt.

The defendant made none of the payments Appeal from Superior Court, New London

required of him by said order and decree, County ; John M. Thayer, Judge.

and this suit was brought to recover the Action by Mathilde Von Ellert Sistare

amount in arrears, which at the commence. against Horace Randall Sistare. From a

ment of the action was $5,805. Judgment for judgment for plaintiff, defendant appeals.

that sum was rendered. The complaint reReversed and remanded.

cited the issuance of the order and its terms Action to recover upon a New York decree in full, that it still remained in full force granting periodical payments for future and effect, and that payments had not been maintenance. Demurrer to complaint over made as ordered to the amount of $8,500, and ruled. Facts found and judgment rendered prayed for judgment for $10,000 damages. for the plaintiff, to recover $5,805, and an ap- | The defendant demurred for the reasons that

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