Harding P. Woods & another vs. Abel Rice, 4 Met. 481

Shaw, C. J. The court are of opinion that the promise of the plaintiffs was made on good consideration. They sued Sprague, and summoned the defendant as his trustee, on the ground that the defendant was the debtor of Sprague. This was affirmed by Sprague and denied by the defendant. The agreement to refer was by Sprague and the plaintiffs, on the one side, and the defendant on the other. The consideration for the promise to abide the award, on the part of the defendant, was the mutual promise of Sprague to abiete the award also, if it should be against him.

This also constituted a good consideration for the promise of the defendant to the plaintiffs. Without the consent of the plaintiffs, Sprague and the defendant could not refer the matter in controversy. The fact of submitting to arbitration is evidence that both Sprague and the defendant desired to have their controversy so adjusted ; and the plaintiffs’ consent being necessary, their agreement to be bound by the same award was a good consideration for the defendant’s promise to abide.

The other point made by the defendant is, that by the promise of the defendant, he was under no obligation to make his answer at the December term; that he did make it at the ensuing term; and that it was not his fault that in the mean time the plaintiffs lost the benefit of their attachment, by the intervention of a commission of insolvency against Sprague. This depends upon the terms of the agreement. There being no time fixed, by the terms of the agreement, for making the trustee’s answer, after the award, it was to be done within a reasonable time.

The meeting of the referees, for hearing the parties, was had a week before the rising of the court, on a Saturday; and by mutual consent, the award was published on the next Monday This afforded ample time for the defendant to make his answer before the court rose. If we go into the parol evidence to show an excuse, to wit, that thé defendant’s counsel was absent, the same parol evidence proves abundantly, that the defendant forebore making his answer, not because his attorney was absent. His attorney was in fact present in town, though not before the referees when they opened their award.

The defendant omitted to make his answer, because he thought he had a valid objection to the award, and did not intend to comply with it. If this objection had been well founded, it would present a very different question. His promise was, in legal effect, to abide by a valid and binding award, and none other. If, therefore, he could now show that the award was for any cause void, he Would show that his promise was not broken.

But that ground being abandoned, and it not being denied that the award was a valid one, the court are of opinion that the defendant was bound to make his answer at that term ; that the postponement of it to the ensuing term was not a compliance within reasonable time ; and that, as by means of the delay the plaintiffs lost the benefit of their attachment, they are entitled to judgment against the uefendant for the amount which they would have held under the trustee attachment, if the defendant had answered and charged himself, at the December term, with the amount of the debt as awarded.