[TITLE.] No. 95. xii. For Services and Materials Furnished. The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of ........ dollars, on an account for work, labor, and services of the plaintiff, performed at the request of the defendant, in [insert nature of work], and for materials furnished by the plaintiff in and about the said work, on the like request, between the .... day of 187., and 187., at the City and County of the day of San Francisco. ., II. That he has not paid the same, nor any part thereof. The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of . . . . . . . . dollars, on an account for the work, labor, and services performed at the request of the defendant, in instructing his children in various useful branches of learning, and for books, papers, and other necessary things furnished by this plaintiff in and about said work, at the like request, and for the board, lodging, and other necessaries for said children, provided by the plaintiff during said time, at the like request, between the .... day of 187., and the .. day of ..... 187., in the sum of dollars. .... ......... ......... II. That the defendant has not paid the same, nor any part thereof [except, etc.] [Demand of Judgment.] CHAPTER II. ON AWARDS. No. 97. [TITLE.] i. On an Award of Arbitrators-Common Form. 187., at The plaintiff complains, and alleges: I. That on the ...... day of disputes and differences existed between the plaintiff and defendant concerning [a demand of the plaintiff for labor and service rendered by him for the defendant at his request], and thereupon, on the day last aforesaid, the plaintiff and defendant agreed, in writing, to submit the same to the award of A. B. as an arbitrator between them, a copy of which said agreement and submission is hereunto annexed, marked "Exhibit A," and made part hereof. II. That thereafter the said A. B. duly qualified as such arbitrator, and heard the plaintiff and the defendant touching their said matters of dispute, and thereafter, on the duly made and day of ..... 187., at published his award, in writing, of and concerning the matters so referred, and thereby said arbitrator awarded and declared, that after due appearance before him on behalf of this plaintiff and said defendant, he found that the said defendant was justly indebted to this plaintiff in the sum of ... dollars, for the services aforesaid [or otherwise, according to the fact]; a copy of which said award is hereto attached, marked “Exhibit B,” and made part hereof. III. That the plaintiff duly performed all the conditions of said award on his part, and afterwards, and on or about the...... day of 187., at ......, gave notice of said award to the defendant, and demanded of him payment of the said sum of dollars, so awarded to the plaintiff as aforesaid. IV. That the defendant has not paid the same, nor any part thereof, and there is now due from the defendant to the plaintiff thereon the sum of . . . . . . dollars, with interest from the ...... day of 187.. [Demand of Judgment.] S 1. Submission must be in Writing.-See Code C. P., secs. 1281 to 1290. Under section 1282 the submission must be in writing. It may be stipulated in the submission that it be entered as an order of the County Court or District Court. When so entered it cannot be revoked without the consent of both parties, and the award may be enforced in the same manner as a judgment. If the submission is not made an order of Court, it may be revoked at any time before the award is made: Sec. 1283. The clerk must be authorized by the stipulation to make a note in his register, and he must in fact make it there; the mere authority without the act done is no more than the act done, without the authority, would be. Both these must concur, and in the absence of either there is no jurisdiction: Pieratt v. Kennedy, 43 Cal. 395; Ryan v. Dougherty, 30 Cal. 218. A stipulation that judgment in the District Court of, etc., may be rendered upon the award made in pursuance of the submission without a stipulation that the submission shall be entered as a rule of the Court, is not sufficient: Fairchild v. Doten, 42 Cal. 128. If the submission is not made a rule of Court, an action may be maintained upon the award, as in the case of common law arbitration. If the submission is not made a rule of Court, it may be revoked by either party at any time before the award is made; but the party revoking is liable to an action for the costs and damages of the other party in preparing for and attending the arbitration: Code C. P., sec. 1290. In New York an action may be maintained upon the award: Cope v. Gilbert, 4 Den. 347; Deidrick v. Richley, 2 Hill, 271; Hays v. Hays, 23 Wend. 363. But a verbal award will not be valid, unless a verbal submission of the matters on which the award is made would be binding upon the parties: French v. New, 28 N. Y. 147. 2. Appeal.-A stipulation that neither party shall appeal from an award is not binding: Muldrow v. Norris, 2 Cal. 74. 3. Attorney's Power to Submit.-It is the practice throughout the Union for suits to be referred by consent of counsel, without special authority: Holker v. Parker, 7 Cranch. 436; Alexandria Canal Co. v. Swann, 5 How. (U. S.) 83; and see Green v. Darling, 5 Mass. 201. 4. Concurrent Acts-Tender.-If the arbitrators award that one of the parties shall pay to the other a certain sum, and also that the parties shall execute to each other mutual releases of all actions, etc., the tender of a release as provided by the award is not a condition precedent to the right to try an action to recover the money: Dudley v. Thomas, 23 Cal. 365. The award of money is absolute and unconditional, but the award of release is different; they are concurrent acts, and neither party can compel the other to execute a release without the tender of a release by him: Id.; Cole v. Blunt, 2 Bosw. 116. But where matters awarded to be done are independent, tender or demand before suit need not be averred: Nichols v. Rensselaer Co., 22 Wend. 125. 5. Conditions Precedent. It was the rule at common law, that the plaintiff need not show the award on both sides, and if there be a condition precedent it need not be alleged: McKinstry v. Solomons, 2 Johns. 57; Diblee v. Best, 11 Id. 103. But under the Code, performance of the conditions of an award must be pleaded, as well as in the case of a contract: Cole v. Blunt, 2 Bosw. 116. 6. Conforming to Submissions.-A complaint on an award must show that the arbitrators conformed to the submission, and the powers of the arbi trators: Gear v. Brocken, Burn. (Wis.) 88; Mathews v. Matheurs, 2 Curt. C. Ct. 105. 7. Delivery. Where the award was required to be delivered to the parties, alleging that it was ready to be, and was, delivered to the plaintiff, it is bad: Pratt v. Hackett, 6 Johns. 14. 8. Election of Remedy.-Where the submission is by bond, the plaintiff has his election to sue on the bond or on the award, if it is merely for the payment of money; but if a collateral thing is awarded, the suit must be on the bond, as debt will lie for money only: 2 Saund. 62. Where a sum of money is awarded, it is sufficient to set forth only so much of the award as to show a good cause of action: 1 Lord Raym. 115. It seems that a clause in a contract providing that in case any dispute should arise in regard to the same it should be settled by arbitrators, is no bar to an action upon the contract: Binssee v. Paige, 38 N. Y. 87. 9. Judgment upon Award.—Judgment may be entered on an award without an order of the Court: Carsley v. Lindsay, 14 Cal. 390. But the award shall be in writing, signed by the arbitrators, or a majority of them, and be delivered to the parties: Cal. Code, sec. 1286. The Court will not disturb the award, unless the error complained of, whether of law or of fact, appear upon the face of the award: Tyson v. Wells, 2 Cal. 122; overruled as to the report of a referee, in Cappe v. Brizzalara, 19 Cal. 607. If a judgment on an award of arbitrators is entered by the clerk at the request of the party in whose favor it is rendered, within less than five days after the award is filed, and without notice to the other party, the prevailing party cannot afterwards question its validity on the ground that it was irregularly entered: Hoogs v. Morse, 31 Cal. 128. 10. Jurisdiction.-Where the Court has no jurisdiction of a subject matter, the arbitrators can have none: Williams v. Walton, 9 Cal. 142. And the award being void, the release of the action by one of the parties is also void, if filed in pursuance of the submission: Muldrow v. Norris, 12 Cal. Cal. 331. A court of equity may decree specific performance of an award: Whitney v. Stone, 23 Cal. 275. This does not apply to real estate, as no arbitration or award can be made affecting the title to real property in California: Spencer v. Winselman, 42 Cal. 479. Where a party receives the amount of a judgment under an award, it is a waiver on his part of all errors and misconduct on the part of the arbitrators: Hoogs v. Morse, 31 Cal. 128. But a submission to arbitration of title to real estate, being prohibited by statute, is not merely voidable, but is void and incapable of ratification: Wiles v. Peck, 26 N. Y. 42. 11. Notice.-Notice of the award and demand need not be alleged, unless required by the terms of the submission: 2 Saund. 62; Rowe v. Young, 2 Brod. & B. 233. This is not, however, the law in California. There notice must be served on the opposite party before judgment is entered: See sec. 1286, Code C. P. 12. Objection to Award.-Where an award is objected to on the ground that it embraces matters not in fact submitted, it lies with the objecting party to show affirmatively in what the arbitrators have exceeded their duty: Blair v. Wallace, 21 Cal. 317. An award may be good in part and bad in part; Williams v. Walton, 9 Id. 146; 13 Johns. 364. 13. Parties. Any person capable of contracting may submit to arbitration any controversy, except a question of title to real property, in fee, or for life: Cal. Code, sec. 1281. This statute is but an affirmance of the common law, and under it the parties have no higher rights than they might have asserted in a court of equity, in cases of fraud, accident, or mistake: Muldrow v. Norris, 2 Cal. 74; re-affirmed in Peachy v. Ritchie, 4 Cal. 205. 14. Partition. Where, under an agreement in writing, parties submit matters of difference relative to the partition of lands to the award of arbitrators, and an award is made thereunder, a specific performance of the award will be decreed: Whitney v. Stone, 23 Cal. 275. So in New York as to disputed boundaries: Stout v. Woodward, 5 Hun. 340; and Ohio, Hunt v. Guilford, 4 Ohio, 310. 15. Partners.--One partner cannot bind his copartner by a submission of partnership matters, but such submission would be good against him: Jones v. Bailey, 5 Cal. 345. Whenever parties may by their non-act transfer real property, or exercise any act of ownership, they may refer disputes concerning it to the decision of arbitrators, as at common law: Blair v. Wallace, 21 Cal. 317. 16. Power of Arbitrators. As to the statutory provision, see Cal. Code, sec. 1284. The arbitrator must make his award within the time limited in the agreement: Ryan v. Dougherty, 30 Cal. 218. An allegation that an award was made, imports that it was ready to be delivered: Munroe v. Allaire, 2 Cai. 320. They may select an umpire either before or after investigation: Dudley v. Thomas, 23 Cal. 365. And may award costs: Id. But after an award has been once made and delivered, they cannot amend the same without consent of the parties: Id. They shall be sworn, and a majority may determine any question: Cal. Code, sec. 1285. Arbitrators have no common-law powers when appointed in the mode provided by statute: Williams v. Walton, 9 Cal. 145. 17. Power to Act.-Where there are three arbitrators, all shall meet, but two of them may do any act which might be done by all: Cal. Code, sec. 1285. 18. Publication. The arbitrator cannot "award" without" publishing " his award, and "publishing" is a technical phrase merely implying that the arbitrator has finally disposed of the case: Brooke v. Mitchell, 6 M. & W. 473. And when published, any alteration whatever, without consent of the parties, will vitiate it: Porter v. Scott, 7 Cal. 312. Notice of the award need not be averred, unless required by the terms of the submission: 2 Saund. 62; 6 M. & W. 474. No demand need be alleged unless expressly required: Rowe v. Young, 2 Brod. & B. 233. 19. Revocation.-An agreement to submit a matter to common-law arbitration is, both at law and in equity, revocable before the award is given: 8 Co. R. 81; 7 East. 607; 1 Bing. 89; 5 Taunt. 452. And it cannot be made irrevocable by any agreement of the parties: Tobey v. The County of Bristol, 3 Story C. Ct. 800. Otherwise it seems, of a submission by rule of court: Masterson v. Kidwell, 2 Cranch. C. Ct. 669. After the arbitrators have been sworn, neither of the parties has the right to revoke the submission: Commissioners Montgomery Co. v. Casey, 1 Ohio St. 463; 4 Dall. 222; 12 Mass. 47. 20. Submission.-To constitute a submission to arbitration under the statute, so as give the award the effect of a judgment, the statute must be |