Dean v. Driggs.

receipted for, and we think the section of the acts of the legislature of this State above cited refers to the same kind of omission. Signing a receipt for goods actually deliv ered, but known by the signer to be something other than that described in the re ceipt, would be a fraud and amount to a false representation for which the signer would

But this issue was not submitted to the jury.

doctrine obtains here. I think that we, in
common with the courts of other States, hold
the carrier or warehouseman estopped in re-
gard to any error or misstatement in the bill
or receipt, only when it amounts to a repre-
sentation as to a fact which was, or in the
ordinary course of business ought to have
been, within his knowledge, and which,
therefore, such a third person acting reason-be liable in any event.
ably would have a right to rely and act upon.
The court below, however, has sustained
the right of the plaintiffs to recover in this
case chiefly upon the provisions of the Fact-
or's Act of 1858, as amended by that of 1866
(chap. 326, Laws 1858; chap. 440, Laws
1866). The first section of the amended act
prohibits a warehouseman (among others)
from issuing a receipt for any goods, unless
such goods shall have been actually received
into the store or upon the premises of such
warehouseman at the time of issuing the re-
ceipt.

The court held that if the goods were not Portland cement, then the receipts issued by the defendant were untruthful and a violation of the above-cited first section of the act.

It is urged that such a receipt is made negotiable. We do not see that its negoti ability is of the least importance in the decision of this question. That there is a certain kind of negotiability attached to this kind of a receipt and to a bill of *lad-[*289 ing is not disputed. Dows v. Perrin, 16 N. Y. 325; Dows v. Greene, 24 id. 638; Lickbarrow v. Mason, 1 Smith's L. C. (8th Am. ed.) 1159, and notes; § 6, Factors' Acts, above cited.

It is not the same thing as the negotiability of a promissory note or bill of exchange. It could not be in the nature of things, but by the indorsement and delivery of such a receipt or bill of lading the indorsee for value and without notice is entitled to hold the property represented thereby under the cir cumstances stated in the above-mentioned acts.

We think the act was not intended to and does not reach this case. It was not passed in order to transform a warehouseman from a mere depositary to that of an insurer of the kind and quality of goods deposited with In this case the plaintiffs are entitled to *288] him. It was not intended to alter be treated as the owners of the property the law in regard to the character of such which was deposited with defendant, and a representation as is contained in these re- they are entitled to its redelivery to them ceipts or to make it anything other than a upon payment of the charges, just the same description of property as above stated. We as the original owner would have been but are quite clear the act does not cover such a for the transfer. When, however, the plaincase as this if we assume the defendant was tiffs demand, not the identical property honestly mistaken when he described the which was deposited with the defendant, but goods actually received by him as Portland such property as would have been deposited cement. The court withdrew from the jury had the description in the receipt been corthe question of the knowledge of the defend-rect, the right to demand such a delivery must ant as to the character of the merchandise be based, not upon the mere transfer of the rereceived by him, as entirely immaterial; and ceipt, but upon the principle of estoppel; hence we must assume his ignorance in dis-such a principle as precludes a party who has cussing his liability.

The English statute to amend the law relating to bills of lading, passed in 1855 (18 & 19 Vic. chap. 111), recited that "it frequently happens that the goods in respect of which bills of lading purport to be signed have not been laden on board, and it is proper that such bills of lading in the hands of a bona fide holder for value should not be questioned by the master or other person signing the same on the ground of the goods not having been laden as aforesaid." It was then enacted that bills of lading in the hands of a consignee or indorsee for value representing goods to have been shipped on board a vessel should be conclusive evidence of such shipment as against the master, notwithstanding the goods or some part had not been so shipped, unless the indorsee had notice, etc.

This statute evidently referred to a case where there had been no delivery of any goods or only a part delivery of the amount

We

made a representation upon which another
has acted from denying the truth of that rep-
resentation. Obviously, the first inquiry
must be whether such a representation has
been made; and when it turns out that it has
not, the estoppel falls to the ground.
have seen that the character of the repre-
sentations made by defendant was nothing
more than that he had in fact received 2,-
500 barrels of what purported to be, and was
described to him as, and what he believed
was, Portland cement, packed as such cement
was usually packed and bearing the outward
indicia of such article. There is in such case
no room for the application of that principle
which decrees that when one of two equally
innocent persons must suffer from the fraud
of a third, that one should suffer who has en-
abled the third person to commit the fraud.

Upon the proper construction given to the language of the *receipt the repre-[*290 sentation contained therein was true. If, however, the plaintiffs chose to regard

Dean v. Driggs-Herbst v. Hagenaers.

mere description of the outward appearance versy to arbitrators under N. Y. Code Civ. of property packed in barrels as a representa- its face to be definite and final, or contain the Proc. 2366, and which does not appear upon tion and warranty by defendant that the con- data or means of working out a definite and tents were actually as described in the re- final determination of the whole controversy ceipt, and to advance money upon the faith submitted, must be set aside under the express provisions of § 2374. of such alleged representations, the fault lies wholly with the plaintiffs, who placed a degree of faith in the correctness of the description which was totally unwarranted from the nature of the transaction, and for which the defendant ought not to be held responsible.

Herbst v. Hagenaers.

The award was also vitiated and should be set aside on account of the refusal of the arbitrators to hear pertinent and material evidence duly offered. Halstead v. Seaman, $2 N. Y. 27; Fudickar v. G. M. Ins. Co., 62 id. 392; Van Cortlandt v. Underhill, 17 Johns. 405. The award should have been set aside on account of the refusal to allow stenographic reports of meetings to be taken. Everson v. Powers, 89 N. Y. 527; Wiliam v. Craig, 1 Dall. 313. The award is void on account of closing the case without notice. Doddington v. Hudson, 1

Bing. 384.

Aside from any other consideration and even were the supplemental award valid, the entire award is so excessive as to be manifestly partial and fraudulent in law. Van Cortlandt v. Underhill, 17 Johns. 405; Toppan v. Heath, 1 Paige, 293, 294; Rand v. Redington, 13 N. H. 72, 76; Perkins v. Giles, 50 N. Y. 228; Garvey v. Carey, 7 Robt. 286: Morse on Arb. & Award, 200; Sedg. on Dam. 601.

award provides that the respondent pay to appellant $6,336, "which does not include the amount due Mr. Lionel Hagenaers on the books of the firm on April 18, 1891, and which latter amount is also to be settled as above referred to." In another and preceding part of the paper it was pro-[*294 vided that the amount which may be due appellant under date of April 18, 1891, "irrespective of the amount of this award herein below stated, is to be paid to him in excess of the amount of the award. The said amount in excess of the award, and also including the amount of the award, both of which amounts are to be paid to Mr. Lionel Hagenaers in cash within ten days from this date."

award the arbitrators reconvened and made About ten days after the delivery of this what is called in the case a supplemental award in which the amount due to the appel lant upon the books of the firm was stated, and this paper was before the court in the subsequent proceedings to confirm, and it was practically incorporated with the first award and made the basis of the judgment. It is unnecessary to make further reference to any action of the arbitrators subsequent to the delivery of the first paper, because by that act they became functus officio and without any power to alter or modify the award or do any other act under the submission. Flannery v. Sahagian, 134 N. Y. 85.

The motion to vacate and to confirm the award was made at the same time, with the result already mentioned.

O'Brien, J. This appeal brings here for review an order of the General Term vacating an order made by arbitrators in favor of the appellant, and reversing an order of the Special Term which confirmed the award. It appears that the parties entered into a partnership agreement on April 16, 1888, which was to terminate June 30, 1893. *293] *The business of the firm was that of foreign commission merchants. The appellant's share or interest in the business was fixed by the partnership agreement at a salary of $2,000 per year, from the date of the agreement to June 30, 1890, and for each succeeding year the same sum, with an increase of $500 over each preceding year. The respondent was to receive a compensation of $6,000 per year. The profit or loss resulting from the business was to be divided When any of the reasons specified in § as follows: The appellant was to receive 2374 of the Code are made to appear to the 22 per cent for the first year, and for the court upon the motion to confirm or vacate, remaining years of the term 5 per cent per the court must vacate the award. In this annum until he should contribute to the cap-case all the grounds for vacating enumerated ital of the firm, and then an additional 2 in the section were alleged against the per cent for each $10,000 contributed, up to award. The court below properly overruled a sum equal to the capital invested by the respondent. In the month of April, 1891, on account of differences and disagreements between the partners, the partnership was practically dissolved, and on that day they entered into an agreement to submit their respective rights and interests to arbitration under the provisions of § 2366 of the Code. The precise question which they submitted to the decision of the arbitrators was "what their respective interests in said copartnership of Herbst Brothers are, and also what compensation, if any, either party is entitled to, in consequence of the dissolution of the partnership." The firm name mentioned in the submission was the same one under which the business was formerly conducted, and which was assumed by the partners in the agreement above mentioned. On the 29th of April, 1891, the arbitrators made and delivered an award in which it was decided that the respondent should pay all the liabilities of the firm and give appellant a formal release, that he was entitled to collect the debts and receive the assets of the firm and continue the business and receive all the books and papers of the firm. Then the

all of them except the grounds specified in the 4th subdivision of the section. The General Term has held that the arbitrators have so far failed to execute their powers that their award is neither final nor definite. The motion of the respondent to vacate and that of the appellant to confirm applied to both awards as they are called, and both were confirmed. The judgment is based upon both, and the last one was clearly void. Flannery v. Sahagian, supra; Doke v. James, 4 N. Y. 568; Fallon v. Kelehar, 16 Hun, 266.

have been sustained in any view that can be The order of the Special Term could not taken of the case. The only question is whether the first award should[*295 have been permitted to stand. The object of the parties in submitting the controversy to the decision of arbitrators was to have determined the question as to how much money the appellant should be paid. Certainly nothing less than a definite and final declaration of the rights of each party as against the other was intended. The award in question does not answer these require ments. It left matters properly embraced

Herbst v. Hagenaers.

in the submission open for future con- determined a part of the controversy subtention, and hence it was not final, as some-mitted, and if the respondent would be thing was still left to be done in order to ac- obliged to answer to that again in some other complish the result which the parties had forum, the purpose of the submission would in view. It was not definite, for, whereas be defeated, so far as he is concerned, by the question submitted was clearly capable holding him to what is definite and leaving of determination by directing the payment open what is not. Both parties were entitled of a fixed sum of money, the award does not under the submission to a mutual, definite, do that. True, it names an amount to which and final award. It cannot be shown that the appellant is entitled, but it also provides they have got it without the aid of the arthat he is entitled, in addition, to another tificial reasoning and refined distinctions sum not named or fixed, but to be ascertained involved in the maxim; that whatever can from the books of the firm. The judgment be made certain is to be deemed certain; to be entered on this award cannot possibly, and then, the most that can be said is that without some other proceeding, be any more the award contains principles which, when definite than the award itself, and thus applied to the case, a definite result may be would not definitely or finally determine the produced. This argument, however, as: rights and interests of the parties. The sumes the necessity of some further proceedaward contemplated some further action by ing, and hence involves the admission that some one in order to ascertain what further the award in its present form is not final. sum, if any, was due to appellant upon the When an award does not appear upon its face firm books. These books and all the firm pa- to be definite and final, and does not in inself pers were awarded to the respondent, and un- contain the data or means of work-[*297 less he volunteered to produce them, and ing out a definite and final determination of with the appellant ascertain and adjust the the whole controversy submitted, the powers balance, it is difficut to see how further legal conferred upon the arbitrators have not been proceedings could be avoided. The arbitra- fully executed, and the provisions of the tors probably supposed that the parties present Code are imperative that it must would do so. But in view of the nature of be set aside. Waite v. Barry, 12 Wend. 377; the controversy and the failure of the par- Jones v. Welwood, 71 N. Y. 208; Dodds v. ties to agree in the first instance, it is not Hakes, 114 id. 260; Code, § 2374, sub. 4. easy to see how they could be expected to do any better after the award was made. If it was but a mere matter of computation from books or documents equally accessible to both parties or in the possession of the court, it is possible that the award might be held sufficient. But for aught we know the books might be made, under the principles of the award, to show a balance against the ap*296] pellant, which might operate to diminish the fixed sum awarded, in which view of the case it can scarcely be said that any definite sum of money is given to the appellant by the award. The learned counsel for the appellant insists that the award is good for the sum of money stated therein, rejecting the other matters. It has been held that where part of an award which is void is not so connected with the rest as to affect the justice of the case, the award is void only pro tanto. Jackson v. Ambler, 14 Johns. 96; Cox v. Jagger, 2 Cow. 638, 14 Am. Dec. 522; Martin v. Williams, 13 John. 264.

This principle has been most frequently applied to a case where arbitrators, after fully, finally, and definitely passing upon all matters embraced in the submission, also include in the award some matter not submitted. Doke v. James, supra.

In this case all matters embraced in the award were duly submitted to the arbitrators. There was jurisdiction, and the only difficulty is that the powers conferred were imperfectly executed. We cannot say under the circumstances of this case that the several provisions of the award are not so related to or dependent upon each other that they can be separated and the indefinite provision rejected. Moreover, this award leaves un

The award in this case does not, we think, satisfy the requirements of the law, and was therefore properly vacated.

The order appealed from should be affirmed, with costs.

All concur.
Order affirmed.

When award of arbitrators will be set aside.

Gar

arbitrators, or for mistake in the award.
An award can be set aside for misconduct of
vey v. Carey, 35 How. Pr. 283: Dobson v.
Pearce. 12 N. Y. 156, 62 Am. Dec. 152: New
Co. 14 N. Y. 85: Smith v. Cutler, 10 Wend. 589,
York Cent. Ins. Co. v. National Protection Ins.
25 Am. Dec. 580; Bouck v. Wilbur, 4 Johns. Ch.
405.

acts evincing unfairness, or contrary to all just
"Misconduct" and "misbehavior" contemplate
proceedings. Turnbull v. Martin, 37 How Pr.
21: Knowlton v. Mickles, 29 Barb. 465.

mistake in ascertaining the amount due from the defendant to the plaintiff. are sufficient grounds to vacate and annul an reward, and may be set up as a defense to an action upon an award. Herrick v. Blair, 1 Johns. Ch. 101; Van Cortlandt v. Underhill, 17 Johns. 405.

Misconduct on the part of arbitrators, and

The court may set aside an award for corrup

tion, partiality, or palpable mistake of law or fact. Smith v. Cooley, 5 Daly. 409 Perkins v. Giles, 50 N. Y. 232, 53 Barb. 346; Burnside v Whitney, 21 N. Y. 148; Shepard v. Merrill, 2 Johns. Ch. 276.

An award will not be set aside for slight ir regularities in the conduct of the referees, If they acted in good faith and no injustice was Fudickar v. Guardian Mut. L. Ins. Co. 5 Jones done. Plummer v. Sanders. 55 N. H. 29; & S. 378.

Nor will an award be set aside for mere error of judgment, however great. Turnbull v. Martin. 37 How. Pr. 21: Smith v. Cutler, 10 Wend. 589, 25 Am. Dec. 580; Ketcham v. Woodruff, 24 Barb. 147; Cranston v. Kenny, 9 Johns. 212. in its amount. In the absence of fraud. Port It will not be set aside merely for an excess Huron & N. W. R. Co. v. Callahan, 61 Mich. 22.

Herbst v. Hagenaers-O'Neil v. Van Tassel.

The premises are subject to the bearing and
*298] *This action was brought to recover paying a just and equitable proportion of the
expense of maintaining an alley adjoining said
$500 paid by plaintiff on executing a con-premises in the rear, and the taxes and assess-
tract for the purchase of land, and $200 paid ments falling thereon. Denman v. Prince, 40
for examination of title, and damages for de- Barb. 213.
fendant's failure to comply with the contract
by conveying the premises free of encum-
brances.