Gunter v. Sanchez

By the Court,

Bennett, J, On the 15th day of October last, the defendants sold to the plaintiff a cargo of lumber on board the ship Almendralina, lying in the harbor of San Francisco, for the gross sum of $38,000, payable one half in cash, and the other half in good bills at 60 days. The lumber was, by the contract, to be delivered on shore, but no time was fixed for its delivery. Very soon after the purchase the plaintiff sold the whole cargo to Messrs. Palmer, Cooke & Go. Previous to the delivery, the plaintiff paid the full contract price, $19,000 in gold dust, at $15,50 per ounce, and $19,000 in bills at 60 days. The plaintiff claimed, at the time of the payment, that the defendants ought to receive the gold dust at $16 per ounce, but the defendants refused to take it for more than $15,50, and it was paid to them at that rate, and accepted by them under protest. The lumber was not all delivered until in the early part of December ; and this action was brought in the court of First Instance to recover damages for the delay in delivering it, and also to recover fifty cents on every ounce of gold dust paid, so as to make it equivalent to $16 per ounce, which was claimed to have been its market value. The cause was referred by the consent of parties to three referees, who, after hearing the proofs and allegations, reported that the refusal of the defendants to receive gold dust at more than $15,50 per ounce was an unreasonable exaction to the amount of fifty cents per ounce, and that the plaintiff had sustained damage thereby to the amount of $989,29, being the principal of fifty cents on the ounce and [47]ten per cent, per month interest. They also found that the lumber was not delivered within a reasonable time, and assessed the damages sustained by reason thereof at $4000. On the coming in of the report, judgment was rendered in the court of First Instance for $4989,29, the amount reported by the referees. No motion was made in the court below to set aside the report of the referees, but an appeal was taken directly to this court.

It was urged on the argument that the appeal could not be sustained, because the reference of the cause amounted to a submission to arbitration, and because no motion had been made in the court below to set aside the award of the arbitrators. These points have been decided at this term of the court, and we see no reason to doubt the propriety of the decision. If the reference of the cause was a submission to arbitration, the suit ceased to be pending in court, for the submission of a cause to arbitration operates as a discontinuance. (18 Johns. Rep. 22; 13 Wend. 293.) This we understand to be the common law doctrine. In England, it is only by virtue of the statutes 9 and 10, Will. III. c. 15, and 3 and 4 Will. IV. c. 42, that judgment-may be entered upon the award of arbitrators, and enforced as a judgment of the court. Previous to these statutes the method of enforcing an award was by action, (1 Chitty Pl. 114, 116, 124,) except in those cases where the submission, was made a-rule of court, and enforced by attachment, as for a contempt, (Kyd on Awards, 21,) an innovation introduced by the English courts, but not sanctioned by American practice. The rule of enforcing an award by action prevails generally in the United States, except where otherwise provided by statute. In many, if not all of the states, the statutes above cited have been, in substance, re-enacted, but here we have no statute upon the subject. It follows that if the reference of this cause was a submission to arbitration, the suit was discontinued ; and the judgment was consequently rendered without any hearing, without trial, without evidence, and with no suit pending in court between the parties. If this be so, the whole judgment should be reversed.