19 L.Ed. 597
9 Wall. 76
ERROR to the Circuit Court for the Southern District of New York. The case being this:
Litigation had been subsisting between S. B. F. Morse and the executors of Alfred Vail, against F. O. I. Smith, arising out of certain agreements concerning Morse's telegraph; all suits and causes of action, however, between the parties, and also, all causes of action, of which it was alleged there were some, between Amos Kendall (who stood in certain relation to Morse and the executors) and this same F. O. I. Smith, had been amicably adjusted and settled, with two exceptions:
1st. A claim for stock and dividends in the Washington and New Orleans Telegraph Company, on the part of Smith against Morse, and the executors of Vail, and also, a like claim on the part of Morse and executors against Smith.
2d. A claim of Smith against Morse for moneys received for the invention of the telegraph from sources out of the United States.
The former of these, by an instrument under seal, containing covenants of settlement of various disputes, in which Kendall was personally interested, and reciting that Kendall was the agent of Morse and of the executors of Vail, and as such agent had made settlement between them of the other disputes, it was agreed should 'be referred to the final decision and arbitration of T. R. Walker and W. H. O. Alden, and an umpire, if needful, as provided in articles this day executed.' The covenant of submission was exclusively between Morse and the executors on one side, and Smith on the other, the parties to the suit, in which Kendall had no personal interest, and concluded thus, it being properly witnessed:
'In testimony of all which, said [parties] have hereunto signed their names and affixed their respective seals at the city of New York, on this 8th day of October, A.D. 1859, in duplicate.
'F. O. I. SMITH, [SEAL.]
'AMOS KENDALL, [SEAL.]
'For himself, and as agent for S. F. B. Morse, and the executors of Alfred Vail, deceased.'
On the back of the submission a memorandum was made about two months after the submission itself, thus:
'We, the within-named parties, hereby agree and bind ourselves to abide and perform the award of the within-named arbitrators, without exception to or appeal from their decision.
'F. O. I. SMITH,
'For himself, and as agent for S. F. B. Morse, and the executors of Alfred Vail.
'NEW YORK, December 13th, 1859.'
The case was heard before the arbitrators, who disagreed, and appointed one Mann as umpire. The case was again heard before him, all parties appearing with their proofs—Kendall appearing throughout, without objection from Smith, as agent of Morse and Vail's executors—and he made his award in favor of Morse and the executors, of certain amounts, payable in stock and in money. These Smith refused to pay. Thereupon Morse and the executors brought suit in the court below against Smith, for an alleged breach to perform the award. The declaration counted on the submission already set forth, but omitted the words above given in italics 'as provided in articles this day executed.' And on that submission being offered in evidence its introduction was objected to on the ground of variance. The articles were not produced at the trial, nor before the arbitrators or umpire, and, in truth, had no existence. The facts, as appeared from the proofs, were, that the parties through their friends had informally agreed on the terms of the submission which were incorporated in the formal submission under seal, and that the draftsman, who as shown by the way in which he had drawn his instrument, was not an accomplished clerk, had probably in his mind this informal previous arrangement in the reference made by him. Both parties, at all events, appeared before the arbitrators and umpire, and no notice was taken of this part of the submission, and no objection made on account of the non-production of the articles, all parties assuming that the submission under seal contained the whole of the terms agreed upon. The court below admitted the submission in evidence.
Another objection was that there was no authority to appoint an umpire. On this point some correspondence between one Cooper, and Kendall, and Smith, was offered in evidence, containing a proposition to submit a claim of Smith to arbitrators, in one letter of which, dated October 5th, referring to the submission, the words 'an umpire to be appointed if they do not agree,' did not appear; and also the memorandum of December 13th, 1859, indorsed on the policy. The court received the evidence under objection.
Another objection was that the submission was signed by Kendall individually, and that he was not made a party to the suit.
And a final one, that Kendall, who executed the submission as agent for Morse and the executors of Vail, had no power or authority as agent, nor was any shown, to do the act; and that the manner in which his authority, if he had any, was exercised, was defective in this, that he did not sign the name of his principal and then add by himself as agent.
The court overruled all the objections, and verdict and judgment having been given for the plaintiffs, Smith now brought the case here.
Mr. R. H. Huntley, for the plaintiff in error:
1. Greenleaf, in his work on Evidence, says:
'If a qualified covenant be set out in the declaration as a general covenant, omitting the exception or limitation, the variance between the allegation and the deed will be fatal.'That the covenant in the submission did not contain the final agreement of the parties as to arbitration, and was not intended to contain such final agreement, is clear from the fact that the parties deemed a further agreement necessary, and intended at once and on the same day to 'provide' and 'execute' 'articles of submission.' But this was not done. The parol proof received was a dangerous and improper sort of testimony.
2. The appointment of an umpire was unauthorized.
The Cooper letter of October 5th shows this. And on the 13th of December an indorsement is made on the submission, by which the parties agree to abide the award of the within-named arbitrators, the idea of an umpire being palpably excluded.
3. The submission was not signed by any authorized agent of the plaintiffs. There is no proof that Kendall was their agent, or that they authorized him to sign for them, or to affix their seal to this instrument.
The mode of signing here also claims attention. Kendall first binds himself; but, as he is not a party to the suit, that is immaterial at present; and then he adds, 'and as agent for S. F. B. Morse and the executors of Alfred Vail, deceased.' This does not bind Morse, even, much less 'the executors of Alfred Vail, deceased,' who are not even named.
4. Kendall should have been made a party to this action. This rule is as old as the time of Yelverton. In a case from that authoritative reporter we find the law thus laid down:
'In an action between A. and B. of one part, and C. of the other part, among other covenants there is one thus, viz.: It is agreed between the parties that C. shall enter into a bond to B., to pay him 100 at a day; in an action for nonperformance A. and B. must join.'
Mr. C. Tracey, contra.
Mr. Justice FIELD delivered the opinion of the court.