Bowman v. Downer.

A request from the defendant to the plaintiff so to pay, may be inferred from an assurance given by the defendant, upon receiving a note from the plaintiff, that it could be arranged by the taxes the defendant was owing him, and that within the year for which the note was given they would get together and have it settled. The defendant had subsequently transferred the note, and the plaintiff had been obliged to pay it to the endorsee.

Such an assurance, if within six years, would be sufficient to prevent the operation of the statute of limitations.

ASSUMPSIT, upon a submission and award; and upon the general counts. Plea, the general issue, and the statute of limitations; trial by jury, May Term, 1855,-UNDERWOOD, J., presiding,

The plaintiff offered in evidence a submission, signed by the plaintiff and the defendant, which was as follows, viz.

"SOLOMON Downer v. JOHN L. BOWMAN and PHILANDER C. BROWN. Windsor County Court, March Term, 1846. Action of ejectment. We hereby agree to submit the matters in controversy, in the above entitled suit, to"

(naming the arbitrators, time and place of hearing, &c.) "Said persons shall decide and determine the sufficiency of the tender made by said Downer, and his right of recovery in the above named suit, and the taxable costs shall follow the same, and be recovered by the prevailing party; and they shall also determine the value of the rent or use of the premises in controversy, per year, from the time said Bowman became liable to account for or pay said Downer for the same, if they shall so find; and said Bowman shall give said Downer possession of said premises on the first day of April, 1846, or at any time thereafter when said Downer shall request such possession. And, after considering the amount and sufficiency of said tender, and the rent and use of said premises, and which of said parties are liable for the payment of the taxable costs in said suit, said persons shall determine what balance is due from one to the other of said parties, which balance each of said parties hereby agrees and promises to pay to the other party, according to the determination of said per sons before named, so made as aforesaid," together with an award, signed by the persons named in the submission as arbitrators, of which the following is a copy:

"We, the undersigned arbitrators, mutually chosen by Solomon Downer and John L. Bowman to hear and determine certain mat

Bowman v. Downer.

ters and differences between them, named and submitted in a cer» tain written submission by them executed, after meeting and hearing the parties, on the 4th day of June, 1846, and considering their respective proofs, we do decide, determine and award, that the said. S. Downer shall pay, on demand, to the said J. L. Bowman, the sum of $115.26, in full of and for all matters submitted, and costs of said Bowman in and about this arbitration."

To the admission of each of these papers the defendant objected, but the same were admitted by the court, to which the defendant excepted.

The plaintiff testified, in substance, that he was constable and collector of taxes for the town of Royalton, from 1834 to March, 1846, except for one year; that in December, 1843, April, 1844, January, 1845, and January, 1846, he received, from the selectmen of Royalton, tax-bills, on which sundry town, state and school taxes were assessed against sundry persons, and among others that there were taxes, on each of said bills, against the defendant; that he thought he had called upon the defendant for said taxes, but had no recollection as to the time when he called upon him, but that it was previous to April, 1848; that the latter part of April, 1848, the plaintiff and defendant met at Bethel for the purpose taking testimony in a chancery suit then pending, in which the defendant and the estate of one Bosworth, then deceased, of which the plaintiff was administrator, were parties; and that there was also a suit at law then pending, in which the defendant and the said Bosworth's estate were either parties or interested; that the defendant proposed terms of settlement, according to which there would be a balance due to the defendant; and the plaintiff further testified,. "I asked the defendant how it could be arranged; he said that it could be arranged well enough, I am owing you taxes and that award; it will come right enough between you and me; I will take your note payable in a year, and during the time we will get together and have it settled;" and that the plaintiff did thereupon settle and give his note to the defendant for the amount agreed upon, payable in one year thereafter. It appeared that this note was sued in the fall of 1852, in Orange county, in the name of Daniel Cobb, as plaintiff, and judgment obtained; and that the

Bowman v. Downer.

plaintiff paid the amount of said judgment, previous to the commencement of this suit.

The plaintiff offered in evidence said tax-bills, to each of which was attached the certificate of the selectmen, and, to two of them, warrants duly signed by a justice of the peace, but to the other two bills no warrants were attached, and no other evidence was offered by the plaintiff as to the legality of the taxes on said bills; to the admission of said tax-bills the defendant objected, but the same were admitted by the court.

The plaintiff further testified that it was his custom to pay over money to the town treasurer as fast as collected, but that he had no recollection of making any advanced payments, and that he had settled and taken up his bonds to the town, as constable; but at what time he made such settlement he was unable to state, but thought it might have been about six years previous to this trial.

The defendant requested the court to instruct the jury that there could be no recovery, in this action, for the amount of said taxes, or any part thereof, because there was no request by the defendant to the plaintiff to pay said taxes;—that he could not, in any event, recover, without proving a special promise to the plaintiff personally; and that there was no sufficient proof that any legal taxes existed against the defendant.

The court declined to charge the jury as requested, but did charge them, among other things not excepted to, that if they were satisfied, from the evidence, that these taxes existed against the defendant, and had been duly assesssd, and they believed that the transaction and conversation at Bethel was as testified to by the plaintiff, and that the plaintiff had settled with the treasurer for his tax-bills, and that the note the plaintiff gave was sued, and paid by the plaintiff, the plaintiff was entitled to recover for the taxes; and that the same evidence which would constitute the plaintiff's right to recover for the taxes, would remove the statute bar as to the taxes; and as to the award, if the jury were satisfied that the defendant, at Bethel, recognized his liability for the award, and made the declaration, as to the award and taxes, as the plaintiff testified; and that, to induce the plaintiff to settle the suits and give his note, it would be a sufficient answer to the statute of limitations. To the charge of the court, and the refusal to charge as re

Bowman v. Downer.

quested, the defendant excepted. The jury returned a verdict for the plaintiff.

W. C. French and Washburn & Marsh for the defendant.

An award must strictly follow the submission, and the arbitrators must award upon all the matters submitted to them; 1 Swift's Dig. 468; 2 Pars. on Con. p. 291. In this case the parties submit, 1st, the sufficiency of the tender made by the defendant in the suit then pending; 2d, the defendant's right to recover in that suit; 3d, the taxable costs in that suit, to be awarded to the prevailing party; 4th, the value of the rents, per year; 5th, lastly, after considering all these matters, they were to find the balance due from the one to the other. In the award, the arbitrators merely find a balance due from the defendant to the plaintiff, without taking any notice and awarding upon any of the other matters submitted. By no reasonable intendment can it be presumed that the arbitrators took those matters into consideration. They are entirely distinct from the finding of a general balance. The following cases fully sustain our views, some of which are very analogous to the present case. Madkins v. Horner, 8 Ad. & El. 246; Rider et al. v. Fisher, 3 Bing. N. C. 874; Upperton v. Fisher, 1 Har. & W. 280; same case, 3 Ad. & El. 295; Houston v. Pollard, 9 Met. 164; also Stephen's N. P. 1 vol. p. 81.

The arbitrators had no power to award the costs of arbitration to the plaintiff. No such permission was given them by the submission. The dictum of Judge WILLIAMS in Hawley v. Hodges, 7 Vt. 237, is not sustained by the authorities. The distinction is between a submission by the parties, and a reference under rule of In the latter case, the referees have power to award costs, but in the former, the arbitrators have not. 1 Stephen's N. P. 148, and cases cited; Peters v. Pierce, 8 Mass. 398; Nelson v. Andrews, 2 Mass. 164; Bacon v. Cramton, 15 Pick. 79; Gordon v. Tucker, 6 Greenl. 247; Vose v. Howe, 13 Met. 243.

court.

As to the taxes, the most that can be made out of the transaction at Bethel, upon which the court based the right of the plaintiff to recover, is that the defendant then admitted that the plaintiff had unpaid taxes against him. He did not promise to pay the taxes to the plaintiff, nor did he request the plaintiff to pay the taxes for

Bowman v. Downer.

him. There was no evidence that the plaintiff had ever paid the defendant's taxes to the town treasurer. The plaintiff testified that he had settled and taken up his bonds, as constable; but he further stated that he had no recollection of making any advance payments to the town. The town might have retained these taxes, or abated them.

The tax-bills should not have been received in evidence. 1st, because there was no evidence tending to show that any of the taxes were ever legally assessed; 2d, because, as to two of the taxbills, there were no warrants attached, and no authority whatever to justify the plaintiff in collecting them.

A. P. Hunton and Converse & Barrett for the plaintiff.

As to the sufficiency of the award, see Hawkins v. Coldough, 1 Burr 274; Houston v. Pollard, 9 Met. 164.

As to authority to award costs of the arbitration, see Roe d. Wood v. Doe, 2 T. R. 644; Wood v. O'Kelly, 9 East 436; Alling v. Munson, 2 Conn. 691; Chase v. Strain, 15 N. H. 535; Strang v. Ferguson, 14 John. 161; Hawley v. Hodges, 7 Vt. 237.

The tax-bills were properly received in connection with the other testimony. They established the fact that rate-bills were in the collector's hands, and the amount in which the defendant was therein assessed. They tended to show that the selectmen of Royalton claimed so much of the defendant, by way of taxes. The defendant could as well authorize the plaintiff to pay the same, on his account, without, as well as with a warrant. Had the defendant requested some third person to pay the amount of these bills to the plaintiff, and he have done so, could he have excused himself for not re-imbursing such person, by showing that the plaintiff, at the time, had no warrant? Nor was it necessary to show any further evidence of their legality. If the plaintiff was authorized by the defendant to pay, and did pay those bills, the defendant cannot now resist the claim on the ground that they were not legal.

The opinion of the court was delivered by

ISHAM, J. This is an action of assumpsit on an award of arbitrators, and for money paid. In relation to the award, it appears that the arbitrators have allowed the sum of $115.26, as a balance