Farnum et al.

V.

HALL, Judge. The point which labours with me

Barnum et al. is the alleged variance between the promise declared

upon, and that contained in the writing offered in evidence. If they substantially differ, the paper adduced cannot be read in evidence.

Daniel Chipman. If a man brings an action upon a written contract, he must produce a writing conformable to his statement in his declaration, and not be allowed to produce a writing which contains extrinsic matters, which require to be buttressed by parol testimony. The facts are immaterial, but as they shew a variance; and to this purpose we mentioned the note given by Barnum to Farnum. Questions of construction of contracts may be proper for a Jury; but here the question is not whether their or our construction is better, but whether there is a variance in the promise declared on and the promise in the writing produced. We did not mean to rely upon the doctrine of extinguishment of debts. The note from Barnum to Farnum was mentioned merely to shew the variance. But surely, if the defendants in this case had given a promissory note to the plaintiffs, containing the sum adjusted, it would have extinguished the contract declared upon.

By the Court. Let the writing be read to the Jury. It appears to be substantially the same with that proferted in the declaration. Hesitante Hall.

Israel Smith, for plaintiffs.

Daniel Chipman, for defendants.

For value received, I promise to pay Jasper L. ment to the aDrake eighty dollars; as witness my hand,

Nathaniel Collins.

General issue found, and cause to the Jury.

Israel Smith, for the plaintiff, stated this to be what is commonly called an arbitration note. Some dispute had arisen between the parties, who agreed to submit their differences to arbitrators indifferently chosen; that a day and place were agreed upon for the arbitrators to meet. Cross promissory notes of equal tenor and date were made by the parties, and deposited with the arbitrators, with power according to the submission to reduce by indorsement the note made by him against whom the award might be made, to such sum as should be found due by the arbitrators, and to deliver the same with his own note to the other party. That the note declared upon was one of these notes. That the arbitrators met on the day and place appointed. The parties appeared, when Collins objected to proceeding to business, alleging that his witnesses were not present, and that it was too late in the day for him to procure them. The

mount of their award, is void.

Drake

V.

Collins.

parties then agreed that the matters in dispute should be submitted to the arbitrators upon their own statement; and if either was discontented with the award, he should be entitled to a rehearing the next day, when he might produce his witnesses. They accordingly submitted the matter in dispute to the arbitrators, who published their award. Collins declared himself discontented. The arbitrators convened the next day, at the same place. Collins did not appear to claim a new hearing. The arbitrators reduced the note declared upon to the sum found due to the plaintiff by their award, and delivered the note, together with his own, to him, according to the terms of the submission. And to recover the contents of this promissory note, his client had brought the present suit.

Chief Judge. If this statement be correct, and this note was given to abide the award of arbitrators in the mode stated, it has been settled by the Court, that such notes are void.

Darius Chipman, for the plaintiff. Can this be taken advantage of under the general issue?

Chief Judge. It goes to the consideration of the note, and may be taken advantage of under the general issue. It is a question, whether, after confession and judgment to enforce an arbitration award, such judgment would not be set aside.

HALL, Judge. I do not consider arbitration notes ipso facto void, but voidable. I conceive that the

award and every other circumstance may be gone into under the general issue.

Chief Judge. I carry the principle further. I consider such notes as void for want of consideration; but the fact, whether arbitration note or not, may be left to the Jury.

SMITH, Judge. When this subject was first started, I was rather inclined to be in opinion with my brother HALL, that arbitration notes, as they are styled, are not in themselves void, but merely voidable; that when a suit is commenced upon such note, the defendant under the general issue must first shew that the note declared upon is of this nature, and then may be let in to impeach the submission, the conduct of the parties and of the arbitrators, the award— every circumstance relative to the transaction. But if this doctrine has been done away by repeated decisions, as stated by the Chief Justice, I should think it my duty to acquiesce in such decisions, although none such ever came to my knowledge, and such decisions must have been made before I had the honour of a seat on this bench.

Witnesses were now sworn, who established the facts substantially, as stated by the leading counsel for the plaintiff.

The Chief Judge, in his charge to the Jury, ob served, that the note was prima facie evidence of a legal demand by plaintiff against the defendant; that there were two points made in the defence:

Drake

V.

Collins.

Drake

V.

Collins.

First. That it was an arbitration note, and as such not recoverable by law.

Secondly. That if recoverable as an arbitration note, yet there were circumstances attending the arbitration which inhibited the plaintiff from recovering.

If they were convinced this was an arbitration note, they must find a verdict for the defendant; for it had been decided before and since he came upon the bench, that such notes are in themselves void, there being no legal consideration in them.

As to the second point, he believed the Jurors would have no occasion to make it the subject of their inquiry. If, however, they inclined to consider it, they had heard the evidence, and might apply it to the cause.

Verdict for defendant.

Israel Smith and Darius Chipman, for plaintiff.