pursued in the manner in which the submission is filed with the clerk: Heslep v. San Francisco, 4 Cal. 1; Carsley v. Lindsay, 14 Id. 390. And the clerk may enter judgment on the award in due time, without any order of the court: See, also, Ryan v. Dougherty, 30 Cal. 218. And by the statutes of California, the submission to arbitration shall be in writing, and may be to one or more persons: Cal. Code C. P., sec. 1282. 21. Vacation of Award.-The Court may, on motion, vacate an award: 1. Where it was procured by fraud or corruption; 2. Where the arbitrators were guilty of misconduct; 3. Where the arbitrators exceeded their powers: Cal. Code C. P., sec. 1287; 58 N. Y. 667. Or it may modify or correct an award: 1. Where there is a miscalculation in figures; 2. When part of the award is on matters not submitted; 3. When, if it had been the verdict of a jury, it could have been amended, or the imperfection disregarded: Cal. Code C. P., sec. 1288. As, where the object of the submission is to make an end of litigation, and the award is uncertain and incomplete upon its face, it defeats the object of the submission and must be set aside: Pierson v. Norman, 2 Cal. 599; Jacob v. Ketchum, 37 Id. 197. 22. Valid Awards.-The rule is that arbitrators must pass upon all matters submitted: Muldrow v. Norris, 12 Cal. 331; Porter v. Scott, 7 Cal. 312. It seems that in New York, "that an arbitrator made an award," means a qualified arbitrator, and sufficiently imports that he was duly sworn, where an oath is required: Browning v. Wheeler, 24 Wend. 258. An award rendered upon fair arbitration, and for a long time concurred in, must be held to be conclusive: Jarvis v. Fountain Water Co., 5 Cal. 179. No award, implies no valid award; 14 M. & W.822. An award settles forever all matters fairly within the meaning and intention of the submission: 12 N. Y. 15; Lowenstein v. McIntosh, 37 Barb. 251. An award bad in part, may be enforced for the part that is good, if not attacked for fraud, and the matter is divisible: Muldrow v. Norris, 2 Cal. 74. It must be certain and decisive as to the matters submitted, and thus avoid all further litigation: Jacob v. Ketchum, 37 Id. 197. Unless it is final and conclusive as to the matters submitted, it is not admissible in evidence: Id. The plaintiff complains, and alleges: II. That said A. B., before they proceeded upon the said arbitration, on the ...... day of 187., by writing under their hands, appointed one E. F. to be umpire in the matter so submitted; and the said arbitrators, after hearing the plaintiff and defendant, and not being agreed concerning the matters submitted to them, the said E. F. afterwards undertook said arbitration, and heard the plaintiff and defendant, and on the ...... day 187., the said arbitrators made their award, in writing, that the defendant should [pay the plaintiff III. That he has not paid the same. ....... [Demand of Judgment.] ... dollars]. 23. Allegation of an Enlargement of the Time.-That on the .... day of 187., the plaintiff and defendant, by agreement [in writing, of which a copy is hereto annexed], extended the time for making the award until the day of ........, 187.. 24. Appointment.-An umpire may be appointed by parol, unless the submission require the appointment to be in writing: Elmendorf v. Harris, 5 Wend. 516. Where an umpire has been appointed, and has entered on the performance of his duty, the authority to decide is vested solely in him; the original powers of the arbitrators cease to exist: Underhill v. Van Cortlandt, 2 Johns. Ch. 339; Butler v. Mayor of N. Y., 1 Hill, 489; Mayor of N. Y. v. Butler, 1 Barb. 325. 25. Date of Award.—An award may be counted on as made at the time of its date, not at the time as extended by erasure or interlineation: Tompkins v. Corwin, 9 Cow. 255. 26. Form of Action.-The above form of complaint does not apply under the practice in this State. The report of a referee, and the award of an arbitrator, are in all essentials the same: Grayson v. Guild, 4 Cal. 122. 27. Power to Award.-But where two arbitrators, unable to agree, appoint under the submission a third arbitrator, the power to make an award is vested in the three jointly. Wherever, therefore, the action is founded on an award, its true character, as the act of an umpire or of arbitrators, must be set forth in the complaint, in order that a defense adapted to its true character may be set up in the answer: Lyon v. Blossom, 4 Duer, 318. CHAPTER III. ON EXPRESS PROMISES. No. 99. i. On an Express Promise in Consideration of a Precedent Debt. The plaintiff complains, and alleges: I. That on the .... day of of .... 187.., at the defendant then was indebted to the plaintiff in the sum dollars, for [state what]. In consideration thereof, he then promised to pay to the plaintiff the said sum, on the .... day of ... II. That he has not paid the same. mand of Judgment.] 1. Consideration.--In every action upon a promise to pay, a consideration must be stated: Bailey v. Freeman, 4 Johns. 280. Such a consideration is an essential fact to be proved, and unless proved the plaintiff cannot recover: Gyle v. Shoenbar, 23 Cal. 538. In an action upon a promise to pay money, if the complaint contains no averment of consideration or of indebtedness, except by way of recital, it is insufficient: Shafer v. Bear River and Aub. W. and M. Co., 4 Cal. 295. 2. Consideration, in Purchase of Land.-Defendant, upon the purchase of certain land from B., agreed in writing as part of the consideration, to pay to plaintiff a debt due to him by B. Plaintiff afterward assented, and verbally agreed to look to defendant for the debt. This was not within the Statute of Frauds, and plaintiff may recover the debt from defendant: McLaren v. Hutchinson, 22 Cal. 187. A promise or agreement to convey lands in consideration of the purchaser's paying for them out of the profits, is void, as having no consideration: Dorsey v. Packwood, 12 How. U. S. 126. A promise made under mistake, as to liability, is void: Offut v. Parrott, 1 Cranch, 154. 3. Consideration-Married Woman.-The advance of money to the son of a married woman is not a sufficient consideration for her subsequent promise to repay: Watson v. Dunlap, 2 Cranch, 14. 4. Consideration to Third Person.-An action can be maintained upon a promise made by the defendant, upon a valid consideration to a third person for the benefit of the plaintiff, although the latter was not privy to the consideration. And a creditor can maintain an action against a person who had received money from his debtor, upon a promise to pay the amount to the creditor: Secor v. Lord, 3 Keyes, 525. Where A., who is indebted to B., promises in consideration of his release by B., to pay the amount to C., who is a party to the arrangement, it is a sufficient consideration to support such promise: Barringer v. Warden, 12 Cal. 311. ...., at .... lars, for goods sold by plaintiff to the defendant. II. That on the .... day of in consideration that the plaintiff would discontinue said action, and would accept dollars in satisfaction of his claim, the defendant promised to pay the plaintiff the sum of .. dollars. III. That the defendant accordingly discontinued said action. IV. That no part of said sum has been paid. [Demand of Judgment.] 5. Claims must be Shown.-A complaint on a promise in consideration of a compromise, should show that there was some shadow of a claim: Dolcher v. Fry, 37 Barb. 152; though it need not show that the plaintiff had a valid claim: Palmer v. North, 35 Id. 282. 6. Consideration.-An agreement to compromise, not unconscientious or unreasonable, must be executed, without regard to the merits of the dispute Sargent v. Larned, 2 Curt. 340. 7. Covenant not to Sue.-A covenant not to sue for five years is no: bar to the action; but the defendant must rely upon the covenant for his remedy: Howland v. Marvin, 5 Cal. 501. A covenant not to sue made to a portion only of joint debtors, does not release any of them: Matthey v. Gally, 4 Cal. 62. 8. Discontinuance of Action.-It must also aver that the litigation was discontinued according to the compromise: Dolcher v. Fry, 37 Barb. 152. No. 101. iii. Promise of a Third Person to Pay Money to Plaintiff. [TITLE.] The plaintiff complains, and alleges: ......... .... I. That on the....day of. one A. B. was, and ever since has been, indebted to the plaintiff in the sum of ...dollars. II. That on that day, the said A. B. was the holder of a bill of exchange [describe it], and then indorsed and delivered the same to the defendant; in consideration of which the defendant then and there promised A. B. that he would endeavor to collect the same, and that when collected, he would apply the proceeds in payment of said indebtedness of said A. B. to the plaintiff. III. That afterwards, on the....day of....... the defendant collected and received the same. IV. That no part thereof has been paid to the plaintiff. [Demand of Judgment.] 9. Condition Precedent.-On a promise to pay money when collected, collection is a condition precedent, and must be averred: Dodge v. Coddington, 3 Johns. 146. 10. Form. This form is supported by Delaware and Hudson Canal Co. v. Westchester County Bank, 4 Den. 97. We have, however, changed it by adding to and striking out portions. Money received by a third person, on promise to pay creditor's debt, may be recovered: Goddard v. Mockbee, 5 Cranch, 666. 11. Refusal to Pay.-In an action for a breach of an agreement to pay money to A. for the benefit of B., it is not necessary to aver that the defendant has refused to pay to B., as well as to the plaintiff: Rowland v. Phalen 1 Bosw. 43. 12. Vendor of Lands.-Defendant, upon the purchase of certain land from B., agreed with him in writing, as part of the consideration, to pay to plaintiff a debt then due the latter from B. Plaintiff afterwards assented, to the arrangement, and verbally agreed with the defendant to look to him for his debt, and release B.: Held, that this agreement was not within the Statute of Frauds, and gave plaintiff a right of action against defendant for the debt: McLaren v. Hutchinson, 22 Cal. 188. Whether the assent was necessary to fix defendant's liability: See Lewis v. Covillaud, 21 Id. 178. 13. When Action Lies.-Assumpsit is the proper form of an action against a guarantor, by one who has given credit on the faith of a general promise to be security. The creditor is not confined to an action of deceit: Lawrason v. Mason, 3 Cranch, 492. When A., by agreement between him and B., assented to by C., becomes liable to pay the latter a debt originally due to him from B., the assignee of C. may maintain an action for the debt in his own name against A.: Lewis v. Covillaud, 21 Cal. 178; McLaren v. Пlutchinson, 22 Id. 187. Defendant being indebted to E. M. & Co., and they to plaintiff, all parties agreed that defendant should pay the amount of his indebtedness to the company to plaintiff. This was an equitable assignment, and the only mode of enforcing it is by action in the name of the assignee to recover the debt: Wiggins v. McDonald, 18 Cal. 126. No. 102. iv. On a Promise to Pay for the Surrender of a Lease. [TITLE.] The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the plaintiff leased from the defendant a house and lot in the town of for a term commencing on the....day of......., 187., and ending on the....day of.... 187., under which he was entitled to the possession of said house and lot. II. That on the....day of........, 187, the defendant promised the plaintiff that in consideration that he, the plaintiff, would surrender to the defendant the unexpired term and the possession, he would pay the plaintiff the sum of........ dollars. III. That the plaintiff thereupon surrendered the unexpired term of said lease, and the possession of said land, to the defendant. IV. That no part of said sum has been paid. [Demand of Judgment.] |