Audubon v. Excelsior Insurance Company.

against the owners, for which credit was given until the delivery of the policy. Therefore, assuming Desmond's evidence to be true, I am of opinion that a present contract of the nature claimed was made between the defendants and the owners of the property.

It is objected that notice of the fire and proof of loss were not furnished according to the provisions of the defendants' printed policies. Such a point was not made on the trial. The controversy, up to the time of the motion for a nonsuit, related wholly to the proof of the contract, and it was the duty of the defendants' counsel, if he relied upon the want of these forms, to have suggested the point. The motion for a nonsuit, under the circumstances, was not calculated to suggest to the court or to the plaintiff's counsel any such defect. Besides, the ground taken by the defendant, that no contract of insurance existed, would be held to dispense with the preliminary proofs. (McMasters v. The Western Ins. Co., 25 Wend., 379; O'Niel v. Buffalo Ins. Co., 3 Comst., 124.

The other exceptions are not well taken. If the defendants actually made the contract imputed to them, it could not be avoided by the consideration that they had not made proper inquiries; and, as evidence upon the question whether such a contract was made or not, it was too remote. The remarks of the judge which were excepted to, were not objectionable. They called attention to the very circumstances which have led me to think that the contract was one for present insurance, and they were quite suitable to be taken into consideration by the jury.

It is said that the verdict is too large. We could not interfere if this was so. But we do not see the matter in the light suggested by the defendants' counsel. The owners of the plates sold them, for the most part, by the single copy, and their price was $300 a copy, making $1,500 for the five sets. This, with interest, after sixty days from the loss, would make the amount of the verdict. The judgment should be affirmed.

DAVIES and EMOTT, Js., took no part in the decision; all the other judges concurring, Judgment affirmed.

Merritt v. Thompson.

MERRITT V. THOMPSON, Administratrix, &c.

Pending an action, the parties stipulated to submit to a referee such items of their mutual accounts as they should not agree upon: the referee not to be bound by legal rules of evidence, but satisfy himself as to the justice of the claims, his decision thereupon to be final and not appealable: any sums allowed by him to be added to or deducted from the balance upon the items agreed upon by the parties: judgment to be entered for the balance ascertained. Until such judgment the stipulalation was not to interfere with the proceedings in the suit, and if judgment should be obtained in the suit while the proceedings under the stipulation were pending, the stipulation should be of no effect. The stipulation by its terms was not to be an arbitration, and no admission made by either party in the proceedings was to be admissible in evidence "if this effort to compromise shall fail." Held, that this was a conditional submission to arbitration, and that after an award, no other proceedings having been had in the suit, the power of the arbitrator could not be revoked so as to prevent judgment.

The award is equivalent to a special verdict upon distinct issues in relation to the claims submitted, and the court may render judgment upon all the facts, as well those reported by the arbitrator as others established by the admissions in the pleadings.

The statute prohibiting the recovery of costs in actions at law against executors and administrators, where payment has not been unreasonably refused or neglected, does not apply to suits commenced against the testator or intestate in his lifetime.

ACTION Commenced in July, 1854, in the Court of Common Pleas of the city of New York, against Martin Thompson, to recover $30,000, alleged to have been received by the defendant at Hong Kong, in China, on the sale of the ship "Mischief," on the plaintiff's account. Also, a further sum for the earnings of the ship prior to the sale.

The defendant, in his answer, alleged that before the sale at Hong Kong, viz., in December, 1853, he sold the ship in San Francisco, as he was authorized to do by a power of attorney. from the plaintiff, for $22,000, and that he was ready to account for the proceeds of such sale. He annexed to his answer an account, claiming sundry credits for payments and expenses, and showing a balance in favor of the plaintiff of $2,675.34, SMITH.-VOL. XIII. 29

Merritt v. Thompson.

after deducting all credits claimed by him, which he offered to pay, if the plaintiff would assent to the account as stated by him.

Among the credits claimed by the defendant was a note of the plaintiff for $2,000, dated May 17, 1853, at six months, with interest, which was set up in the answer as a counterclaim. This counterclaim stood admitted on the record, the answer not having been replied to.

Martin Thompson having died, the present defendant, administratrix of his estate, was, in June, 1859, by an order of the Court of Common Pleas, substituted as defendant in his stead.

The action was not brought to trial in the court, but on the 17th of November, 1859, the parties, under the title of the cause, entered into the following stipulation:

"Whereas, the parties in the above entitled suit are desirous that the claims involved in the same be compromised and settled, it is hereby stipulated between the parties hereto, that, for the purpose of a compromise and settlement of said claim, and for no other purpose, the defendant will pay to the plaintiff his share of the amount for which the ship 'Mischief' was sold at Hong Kong; * * * and any passage money or other receipts of the ship, deducting therefrom the expenses which said Thompson may have incurred as master of said. ship, together with his salary, as settled between the said Thompson and the plaintiff herein, and any other charges which said Thompson was rightfully entitled to make.

"And it is further stipulated, that if the parties do not agree on all the items of said accounts, or on all the amounts claimed by the defendant, such disputed items or questions, with the accounts and vouchers relating thereto, and the objections made by said Merritt to the same, shall be submitted to Eben B. Crocker, Esq., for his decision thereon: that either party may be heard and produce proofs before said Crocker: that, in settling said accounts and disputed items, the said Crocker shall not be bound by strict legal rules of evidence, but shall satisfy himself as to the justice of the claims, and decide thereupon.

Merritt v. Thompson.

"And it is hereby further stipulated, that the decision of said referee shall be taken by both parties as final, and no appeal can be taken therefrom; and if, on such decision of such disputed accounts, any one shall be found to be due to either of the parties, that the same shall be added to or subtracted from the amount which may have been previously, agreed upon between the parties, according as the same shall be in favor of or against the party in whose favor the balance of admitted items shall be; and that judgment for the bal ance ascertained shall be entered, and shall be enforced in all respects the same as if it were a judgment of this court.

"And it is hereby stipulated, that the party in whose favor such balance shall be found, shall have full power to enter judg ment for the same, and that, on the perfection of said judgment, it shall be a bar to all further proceedings in the above entitled suit.

"And it is hereby further stipulated, that until such judg ment is perfected, this stipulation shall not in any way interfere with the proceedings in the above entitled suit, and that if judgment is obtained in the suit at law during the pendency of the proceedings under this stipulation, then and from thenceforth this stipulation shall be null and of no effect.

"And this stipulation shall not be deemed an arbitration, or a discontinuance of this action, but only an effort made, in good faith on both sides, to settle the same, binding in honor upon both, but not to prejudice the legal rights or remedies of either party, in case a settlement cannot be effected by this No admission, made on the part of either party during this negotiation, shall be admissible in evidence, if this effort to compromise shall fail. Dated New York, November 17, 1859."

means.

Proceeding under that stipulation, the accounts, bills and vouchers of Martin Thompson were submitted to the plaintiff by the defendant, and were examined by the plaintiff, and the items agreed upon as far as practicable; but the parties failed to agree upon all the items, and the disputed items or questions, with the accounts and vouchers relating thereto, the

Merritt v. Thompson.

objections made to them by the plaintiff, and the reasons given for their allowance, were submitted by the parties to the referee named therein, for his decision. The whole accounts were presented to the referee, and the items which were admitted, and those which were disputed, were pointed out to him by the parties. Both parties appeared before the referee, and produced proof in regard to the disputed items. The $2,000 note was presented by Mr. Curtis to the referee, as a charge against the plaintiff, who admitted the validity of the note, but insisted that it was not within the stipulation and could not be allowed.

On the 23d of May, 1860, the referee made the following report:

"I, Eben B. Crocker, the referee in the above entitled action, do find and hereby declare, that there was due to William H. Merritt, the plaintiff in this cause, $19,963.68, on the 29th day of June, 1854, after deducting all sums received by the said Merritt up to that date; and hereby declare, that there is due to William H. Merritt, from the estate of Martin Thompson, this 23d day of May, 1860, $12,535.60. This sum is due to said Merritt from the proceeds of the sale of ship 'Mischief,' from the time of her sale at auction at San Francisco, December 10th, 1853, and after deducting all sums he has received from Martin Thompson, or from his estate, on account of the sale of said ship.

"This decision does not in any way invalidate the note of William H. Merritt, dated May 17th, 1853, in favor of Martin Thompson, for $2,000; and all I have decided is, what was due to William H. Merritt from the sale of the ship 'Mischief,' less all sums he has received from Martin Thompson, and from his estate, on that account. EBEN B. CROCKER."

On the 30th of May, 1860, the defendant's attorney notified the plaintiff's attorney that the defendant declined to abide by the decision of Mr. Crocker, and elected to proceed with the suit.

In May, 1861, a motion was made on the part of the plaintiff, at a special term of the Court of Common Pleas, founded