Woodrow v. O'Conner.

but the court overruled the objection, to which the defendant also excepted.

Cooper & Bartlett and O. Ray for the defendant.

The award of these arbitrators was the only valid consideration for this note.

The submission in this case was in writing, and is the only proper evidence of what the parties agreed to do.

Parol evidence to show that Lougee was umpire was inadmissible, as was also all parol evidence of the agreement of the parties to the award to alter or vary or in any way control the written submission.* 2 Stark. Ev. 995-1000. Mc Gregor v. Bugbee, 15 Vt. 734. Jones v. Webber, 1 D. Chip. 215. Bradley v. Anderson, 5 Vt. 152. Bradley v. Bentley, 8 Vt. 243.

This arbitration and award all rest in parol.

The arbitrators transcended the authority given them in the submission by attempting to award what the submission makes no provision for, and this too is the act of all three.

This is a foreign award, and is no more conclusive than a foreign judgment.

Foreign judgments may be impeached, especially of courts not of record. 1 Stark. Ev. 209, 3d ed.

In Vermont an award is no further conclusive than a judgment at law.

In this case the arbitration arose collaterally, as the consideration of the note, and is subject to be impeached for the fraud or corruption of the party.

H. A. Fletcher for the plaintiff.

The count for money had and received is as appropriate as a special declaration either upon the award or note.

A promissory note may be given in evidence upon a count for money had and received. Edgell v. Stamford, 6 Vt. 551.

So a sum of money awarded to be paid, may be recovered in an action for money had and received. Bates v. Curtis, 21 Pick. 247. See also Keen v. Battshose, 1 Esp. 194.

Notes executed at the time of the submission, deposited with

*The submission was not among the papers furnished to the reporter.

Woodrow v. O'Conner.

referees or arbitrators, to be reduced by endorsements to the amount of the award, are held valid. Town v. Jaquith, 6 Mass. 46. Batty v. Button, 13 Johns. 187. Page v. Pendergrast, 2 N. H. 233. See also 17 Johns. 301.

In arbitrations the parties select their own judges, by whose decision and award they are bound, and the agreement of the parties will also be binding upon them. The agreement of the parties was that neither the arbitrators or witnesses should be sworn, and the objection that they were not sworn has no weight. See Town v. Jaquith, 6 Mass. 45. .

1

The appointment of Lougee as umpire is good, though made before the arbitrators entered upon the business referred to them. 2 T. Rep. 645. Bates v. Cooke, 9 B. & C. 407. And the arbitrators may well join with the umpire in making the award. v. Hodgson, 3 Burr. 1474.

Soulsby

Indeed the submission says that the umpire was to act with the said arbitrators, and accordingly, with the consent of the parties, the arbitrators submitted the evidence to said umpire.

The award is in the nature of a judgment, and it cannot be impeached by evidence tending to show that the plaintiff obtained the award by false testimony. 2 N. H. 234.

It is further objected that there is no consideration for the note. The short answer to this exception is, that the submission of the matters in difference between the plaintiff and the defendant, and their undertaking to pay, form a good and sufficient consideration. 2 N. H. 233.

The opinion of the court was delivered by

BENNETT, J. The facts in this case all appear upon the bill of exceptions, and the case states that they were not controverted on the trial. It appears that the notes, submission and award were all made in Canada East, where both parties, at the time, resided, and hence it must be regarded as a Canada transaction, and to be governed by the Canada laws. We cannot, however, take judicial notice of the laws of Canada, and there being no evidence before us as to what those laws are upon the facts now before us, we are to assume that there is no distinction between those laws and our The question then is, cannot the plaintiff recover the amount

own.

Woodrow v. O'Conner.

due upon his note? We discover no reason why the award was not binding upon the parties.

It appears that the parties agreed that neither the arbitrators nor witnesses need be sworn, and the defendant cannot now make such an objection. Besides the exceptions show that by the laws of Canada, when the arbitration is not under a rule of court, the arbitrators and witnesses need not be sworn, unless required by one of the parties. There can be no objection that the umpire was appointed before the arbitrators entered upon the business submitted to them. Roe on the demise of Wood v. Doe, 2 Term 644; and both arbitrators might well join with the umpire in making the award. See Soulsby v. Hodgson, 3 Burr. 1474; and indeed the submission contemplated that the umpire was to act in conjunction with the arbitrators.

The evidence offered by the defendant that the plaintiff procured the award to be made in his favor by means of false testimony induced by him, was properly excluded. The award is in the nature of a judgment, and cannot be thus collaterally impeached. Bulkley v. Stewart, 1 Day 130. Page v. Pendergrast, 2 N. H. 234. If there was a binding award between the parties, a recovery may well be had upon the arbitration note, as it is called. It was decided by the supreme court, as early as 1819, that arbitration notes were valid. Bagley v. Wiswall, Brayton 23. The objection that there is no sufficient consideration is unfounded. The note takes effect from the time it was delivered over to the party by the arbitrators, and if at that time there is a valid award, in a certain sense, the note takes the place of the award, and there is a most ample consideration to support the note. See Batty v. Button, 13 Johns. 187. Page v. Pendergrast, 2 N. H. 233. See also 17 Johns. 301.

count.

If the note is valid, a recovery might well be had on the money It seems the plaintiff waived his counts upon the award. We think the judgment below should be affirmed.

Walker v. Barrington.

HORACE WALKER v. JOSEPH BARRINGTON.

Revocation. Book account.

The bringing of an action on book account is not, per se, a revocation of an authority previously given by the plaintiff to the defendant to pay to a third person certain items in the plaintiff's account. If the defendant, after the commencement of the suit but before the audit, pay such items to a third person in pursuance of an authority previously given, and not revoked, he should be allowed for such payment, although he thereby obtains a balance of the account in his favor.

BOOK ACCOUNT. In the plaintiff's account were charges which were allowed in his favor, for a shoat, and for a quantity of coal sold to the defendant. Items 17 and 18, in the defendants account were "for cash for pig, paid to Wilbur Barrington," and "for cash for coal, paid to the same," which the auditor disallowed, subject to the opinion of the court upon the following facts.

At the time the plaintiff let the defendant have the shoat and coal, the defendant was to pay for the same to his father Wilbur Barrington, and so offered to do; but said Wilbur refused to receive it, for the reason that he thought it would affect certain contracts between him and the plaintiff. Said sums were not paid by said defendant to his father until the 15th day of December, 1855, which was after the commencement of this suit. The balance reported in the plaintiff's favor was five dollars and seventy-nine cents. The items 17 and 18, in the defendant's account, amounted to thirteen dollars and thirty-nine cents.

The county court, January Term, 1856,-POLAND, J., presiding, rendered judgment on the report for the plaintiff for the above balance reported in his favor. Exceptions by the defendant.

G. C. & G. W. Cahoon, for the defendant,-argued that it was a part of the contract for the sale of the coal and the pig, that they were to be paid for to the defendant's father, and that this part of the contract could not be revoked or rescinded by one party without the consent of the other; that there was never any default in the defendant in fulfilling the contract, on his part, according to his agreement; and if otherwise, that it only constituted a breach of a special contract, for which the action on book would not lie; and cited 1 Swift's Digest 582; Miller v. French, 1 Aik. 101; Smith v. Smith, 14 Vt. 440; Bailey v. Bailey, 16 Vt. 656.

Walker v. Barrington.

W. Heywood for the plaintiff.

The commencement of this action was a revocation of all authority to pay the price of the coal and shoat to Wilbur Barrington. Wilbur Barrington had no claim on the money, for he had refused it. The right of action, therefore, was always in the plaintiff. Wilbur Barrington never had a cause of action. Shortly before the trial before the auditor, the defendant paid the price of the coal and shoat to Wilbur Barrington, but we contend that this payment cannot avail him.

The plaintiff had a good cause of action when he commenced this suit, and was entitled to a balance on his account, and costs. A payment of the balance of the account would not defeat this suit without a payment of costs also; Stevens v. Briggs, 14 Vt. 44; Belknap v. Godfry, 22 Vt. 288; King v. Hutchins, 8 Foster 561.

The fact that Wilbur Barrington was no party to the agreement upon which he was to receive the pay for the coal and shoat, and that he refused to receive the money, makes this case differ from the case of Keyes v. Carpenter, 3 Vt. 209.

The opinion of the court was delivered by

BENNETT, J. The only dispute in this case is in relation to items 17 and 18 in the defendant's account. If the defendant is not entitled to recover for these items, the balance on the accounts, as allowed, is for the plaintiff. The auditor finds that at the time the plaintiff let the defendant have the shoat and the coal, it was agreed that the defendant was to pay the amount for the same to the father of the defendant; and that the defendant offered to pay his father, but he at first declined to receive the pay, for reasons assigned in the report; but the case finds, as we understand it, that he did pay his father the two items, on the 15th day of December, 1855, which was after the suit was commenced, but before the audit. It being a part of the agreement, when the shoat and coal were sold to the defendant, that payment should be made for the same to the father of the defendant, it may well be questioned whether it was competant for the plaintiff to countermand the authority to pay the amount to the father. But be this as it may, it is quite clear, we think, that the bringing of this suit is not, per se, a revocation of the authority; and there is nothing else in the case