Thomas Barrows, Jr. vs. Oliver Capen, 11 Cush. 37

Bigelow, J. The main ground upon which the defendant seeks to set aside the award, upon which the present action is brought, is, that the arbitrators have exceeded their authority. Assuming the fact to be so, it does not follow, that for this reason the award is absolutely void. The more liberal doctrines, which have prevailed in modern times concerning the construction and

interpretation of awards, have materially relaxed the ancient rigor of the law, and the old rule, by which it was held that an award bad in part was bad for the whole, has been long since modified. It is now the well settled rule, that if the thing awarded to be done, which is bad, as being beyond the submission, forms no part of the consideration for, or element in the performance ■ of that part which is good as being within the submission, but is wholly distinct and independent thereof, then the award can be separated, and the bad part rejected, and that which is good held valid and Dinding on the parties.

It seems to us that the case at bal falls clearly within this principle. If the defendant is right in his construction of the submission, and if the arbitrators, as he contends, went beyond their authority, in the fourth and fifth clauses of the award, by their determination concerning the debts due to and owing by the firm, we can see no necessary connection between that portion of the award, and the matter included in clauses numbered one and two, which precede it.

By the narrowest construction, it was the duty of the arbitrators to award concerning the claim' of each of the copartners upon the firm and upon each other and upon the claims of the firm upon each of the partners severally. This required them to consider and determine upon the respective claims of the copartners upon each other, upon the firm, and of the firm upon each of the copartners at the time of the award. In doing this, it would not necessarily be requisite to inquire and ascertain what debts were due to or owing by the firm.

The essential subject of inquiry by the arbitrators was into the accounts of the copartners with the firm and each other, but not into the debts owing to the firm from third persons or from the firm to third persons. That was a separate, independent matter, which could not affect the accounts of the partners between themselves or beween them and the firm, nor could it properly enter into and form part of the consideration upon which the award of the sums due from Clapp to Capen and from Capen to Barrows, was based. Certainly, it is not shown that there was any connection between these two subjects of inquiry.

The defendant himself correctly states the true posture of the case on this point in his brief, when he says, that the articles of copartnership expressly provided how the accounts of the firm were to be made up, the profit and loss divided, and the business finally terminated and the firm dissolved. The submission provided for none of these, but only for the existing disputes and differences betwixt the partners, and was limited, in fact, to their mutual accounts; upon these last the award is full and complete.

They are shown to have no necessary connection with the other matters contained in the award, but seem to be wholly separate from and independent of them. In these particulars, the award, primd facie, would have been the same, whether the outstanding debts due to and from the firm were taken into consideration or not.

Rejecting, therefore, all that part of the award to which the defendant objects as being void for an excess of authority by the arbitrators, there is still left, wholly distinct and independent of it, that portion of the award, upon which the present action is brought, clearly within the submission, and valid and binding on the parties.

Upon examination of the testimony submitted to us, we are strongly inclined to the opinion, that the arbitrators did not go beyond their authority in awarding upon the matters contained in the fourth and fifth clauses of this award, and that they have executed this part of their authority with sufficient certainty and finality. Besides; in this part of their award, they seem to have done little else than to declare the legal rights of the parties, as they would have stood without any award by them.

But it is unnecessary to go into a detailed examination of the case on this point, because, for the reasons already given upon the first ground of exception, we are of the opinion that there must be Judgment on the verdict.