Whitney v. Stone

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action for the specific performance of an award made by arbitrators," under and in pursuance of an agreement made by the parties. The defendant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action. The Court sustained the demurrer, holding that the remedy of the plaintiff was not by a suit for a specific performance, but an action to recover the penalty of five hundred dollars stipulated in the agreement, submitting the matters in controversy to the arbitrators, and agreeing to abide by and perform the award. A final judgment was rendered against the plaintiff, from which he appeals.

The complaint avers that the defendant, on the thirty-first day of October, 1860, conveyed to the plaintiff the undivided one-half of certain tracts of land in Siskiyou County, and' that they then entered into a partnership and farmed the land as copartners until the twenty-second of March, 1862, when differences and misunder[276]standings having arisen between them relative to the farm and the business, they entered into an agreement to submit the same to arbitrators. This agreement is set out in the complaint, and recites that a controversy existed between the parties relative to the control and management of then* partnership farm, and they therein agreed “ to submit the controversy to be settled by a division of the said farm, together with ah the improvements and appurtenances thereunto belonging,” to certain persons therein named as arbitrators ; and they further agreed therein to abide by, keep, and perform the award made by such arbitrators; and they also bound themselves each to the other in the sum of five hundred dohars, “ to be due and subject to immediate collection by either one at the time and after the other shah have refused to abide by, keep, and perform toward the other according to the award of said arbitrators.” The complaint further avers that the arbitrators duly met and made their award, by which they divided the ranch between the parties, specifying the fines of division, providing Tor the removal of fences to the partition lines by the parties, each to bear half the expense of such removal; and it was further awarded that the plaintiff should give to the defendant his two promissory notes for one hundred and fifty dohars each; that the parties should cancel ah bonds and obligations in reference to the purchase money of the ranch; that the defendant should give to the plaintiff a new bond for the south half of the ranch, which they had awarded to the latter, for a warranty deed to be given, as soon as the defendant should have perfected his title; that the plaintiff should give a new obligation for the payment of the purchase money of the land; and other awards about the use of the water on the ranch; and a division of the personal property between the parties, which division was then made, and the property as divided delivered to the parties. The complaint avers that the plaintiff has performed in part, and is ready and willing to perform ah the award required of him; that he duly executed and _ delivered the two promissory notes as required by the award, but the defendant has refused to execute any bond, covenant, or assurance as required by the award, though requested so to do; that ah of the award has been complied with by both parties, except as to the conveyance of the real estate and the