SMITH V. MORSE, 76 U. S. 76 (1869)

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U.S. Supreme Court

Smith v. Morse, 76 U.S. 9 Wall. 76 76 (1869)

Smith v. Morse

76 U.S. (9 Wall.) 76


1. Where the covenant in a submission to arbitration, after referring certain claims to the decision of arbitrators, and an umpire, if necessary, adds the words, "as provided in articles of submission this day executed," and no such articles in fact ever had any existence, the declaration in an action for breach of the covenant need not refer to any such articles. Proof that no such articles ever had any existence will answer any objection of a variance between the covenant stated in the declaration and the covenant contained in the submission.

2. Where the agreement in a submission to arbitration provides that certain claims shall "be referred to the final decision and arbitration" of parties designated, "and an umpire, if needful," the arbitrators are authorized, in case of their disagreement, to appoint an umpire. It will be presumed that the parties intend that the usual mode shall be followed in the appointment in the absence of any different designation, and the usual mode is by the act of the arbitrators themselves.

3. An agreement to submit matters to arbitrators and to an umpire, if needful, carries with it the further agreement to abide the award which they may render or, in case of their disagreement, which he may render. The law implies an agreement to abide the result of an arbitration from the fact of submission.

4. Where an agreement providing for the settlement of certain claims and the submission of other claims to arbitration is signed by an agent for his principal in the name of the latter, and the latter accepts the settlement and brings an action upon the covenant contained in the submission, he thereby adopts and ratifies the acts of the agent.

Where an instrument executed by an agent shows on its face the names of the contracting parties, the agent may sign his own name first and add to it "agent for his principal," or he may sign the name of his principal first, and add by himself as agent. Either form may be followed; all that is required in such case is that the contract shall purport on its face to be the contract of the principal.

Page 76 U. S. 77

5. Where an instrument provides for the settlement of certain claims between certain parties and the submission of other claims between other parties, the latter parties should only be named in actions upon the covenant of submission, although the instrument be signed by all the parties named therein.

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 & 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

Page 76 U. S. 78

their names and affixed their respective seals at the City of New York, on this 8th day of October, A.D. 1859, in duplicate."



"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's 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

Page 76 U. S. 79

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 nonproduction 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 5, 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 13, 1859, endorsed 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.

Page 76 U. S. 81

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