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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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and to that end and purpose the said (here state the contributions of each of the
parties)

to be used and employed in common between them for the support and manage-
ment of the said business, to their mutual benefit and advantage. And it is
agreed by and between the parties to these presents, that at all times during the
continuance of their copartnership, they and each of them will give their attend-
ance, and do their and each of their best endeavors, and to the utmost of their
skill and power exert themselves for their joint interest, profit, benefit, and adv.an-
tage, and truly employ, buy, sell, and merchandise with their joint stock, and the
increase thereof, in the business aforesaid. And also that they shall and will at
all times during the said copartnership bear, pay, and discharge equally between
them, all rents and other expenses that may be required for the support and man-
agement of the said business ; and that all gains, profit, and increase that shall
come, grow, or arise from or by means of their said business, shall be divided
between them (state whether equally, or in what proportions) and

all loss that shall happen to their said joint business, by ill commodities, bad debts,
or otherwise, shall be borne and paid between them.

And it is agreed by and between the said parties, that there shall be had and
kept at all times during the continuance of their copartnership, perfect, just, and
true books of account, wherein each of the said copartners shall enter and set
down, as well all money by them or either of them received, paid, laid out, and
expended in and about the said business, as also all goods, wares, commodities,
and merchandise, by them or either of them, bought or sold by reason or on
account of the said business, and all other matters and things whatsoever to the
said business and the management thereof in any wise belonging; which said
books shall be used in common between the said copartners, so that either of them
may have access thereto, without any interruption or hindrance of the other. And
also the said co-partners, once in

or oftener if necessary, shall make, yield, and render, each to the other, a true,
just, and perfect inventory and account of all profits and increase by them, or
either of them, made, and of all losses by them, or either of them, sustained ; and



ABTICLES OF COPARTNERSHIP. 23u

also all payments, receipts, disbursements, and all other things by them made,
received, disbursed, acted, done, or suffered in this said copartnership and business,
and the same account so made shall and will clear, adjust, pay, and deliver, each
to the other, at the time, their just share of the profits so made as aforesaid.

And the said parties hereby mutually covenant and agree to and with each
other, that, during the continuance of the said copartnership, neither of them shall
nor will indorse any note, or otherwise become surety for any person or persons
whomsoever, without the consent of the other of the said copai tners. And at the
end, or other sooner determination of their copartnership, the said copartners,
each to the other, shall and will make a true, just, and final account of all things
relating to their said business, and in all things truly adjust the same ; and all and
every the stock and stocks, as well as the gains and increase thereof, which shall
appear to be remaining, either hi money, goods, wares, fixtures, debts, or otherwise,
shall be divided between them.

In Witness Whereof,

(Signatures.)

(85.)

Certificate of a Limited Partnership, with AcJenowledgment

and Oath.

This is to Certify, That the undersigned have, pursuant to the provisions
of the Statutes of the State of formed a limited partnership, under

the name or firm of that the general nature of the

business to be transacted is (describe the business) and that

the general partner and

is the special partner and that the said (the special partner) hath
contributed the sum of dollars, as capital

towards the common stock, and that the said partnership is to commence on
the day of and is to terminate on the

day of 18

Dated this day of one thousand eight hundred

and

(Signatures.)

County of as. On the day of

one thousand eight hundred and before me came

to be the individuals described in, and who executed the above certificate, and
they severally acknowledged that they executed the same.

County of 88.

the general partner named in the above certificate, being duly sworn, doth depose,
and say, that the sum specified in the said certificate to have been contributed by
the special partner to the common stock has been actually and in good faith paid
in cash.

Sworn this day of 18 before me,

17



236 ARBITKATION.

In some of the States, the oath should be made by the general
partner ; and it would always be safe for all the partners, general
and special, to take the oath, and be included in the certificate.



CHAPTER XIX.



SECTION I.
OF THE SUBMISSION AND AWARD.

[By the Submission (or reference) is meant the submission of the question or questions
to arbitrators.]

THE law favors arbitration in many respects as a peaceable and
inexpensive mode of settling difficulties. Parties may agree to refer
a question by an oral agreement, or by a written agreement. The
form is not essential. But it is always best to reduce the agreement
to writing, and to express it carefully. But parties may, in many
of our States, go before a magistrate and agree to refer in the man-
ner pointed out by the statute. In all of them a ca.se may be taken
out of court and submitted to referees under an order of court.

The first essential of an award, without which it has no force
whatever, is, that it be conformable to the terms of the submission.
The authority given to the arbitrators should not be exceeded ;
and the precise question submitted to them, and neither more nor
less, should be answered. Neither can the award affect strangers
(or those who are not parties to it) ; and, if one part of it is that a
stranger shall do some act, it is not only of no force as to the stran-
ger, but of no force as to the parties if this unauthorized part cf
the award cannot be taken away without affecting the rest of the
award.



SUBMISSION AND AWAKD. 237

Nor can it require that one of the parties should make a payment,
\IT do any similar act, to a stranger. But if the stranger is men-
tioned in an award only as agent of one of the parties, which he
actually is, or as trustee, or as in any way paying for, or receiving
for, one of the parties, this does not invalidate the award. And in
favor of awards, it has been said that this will be supposed, where
the contrary is not indicated.

If the award embrace matters not included in the submission, it
is fatal. If, however, the portion of the award which exceeds the
submission can be separated from the rest without affecting the
merits of the award, it may be rejected, and the rest will stand ;
otherwise the whole is void. If the submission specify the particu-
lars to which it refers, or if, after general words, it make specific
exceptions, its words must be strictly followed.

If these words are very general, they will be construed liberally,
but yet without extending them beyond their fair meaning. On the
other hand, all questions submitted must be decided, unless the sub-
mission provides otherwise ; and either party may object to an
award, that it omits the decision of some question submitted ; but
the objection is invalid if it be shown that the party objecting him-
self withheld that question from the arbitrators. Nor is it necessary
that the award embrace all the topics which might be considered
within the terms of a general submission. It is enough if it pass
upon those questions brought before the arbitrators, and they are so
far distinct and independent that the omission of others leaves no
uncertainty in the award. If the award does not embrace all of the
matters within the submission which where brought to the notice of
the arbitrators, it is altogether void.

In the next place, an award must be certain ; that is, it must bo
so expressed that no reasonable doubt can be entertained as to the
meaning of the arbitrators, the effect of the award, or the rights and
duties of the parties under it. For the very purpose of the submis-
sion, and the end for which the law favors arbitration, is the final
settlement of all questions and disputes; and this is inconsistent
with uncertainty.

In the next place, the award must be possible ; for an award re-
quiring that to be done which cannot be done is senseless and ise-



238 ARBITRATION.

less. But the impossibility which vitiates an award is one which
belongs to the nature of the thing, and not to the accidental dis-
ability of the party at the time. Thus, if he be ordered to pay
money on a day that is past, this is void ; so if he be required to
give up a deed which he neither has nor may expect to have ; but
if he be directed to pay money, the award is good, although he has
no money, for it creates a valid debt against him. Nor can a party
avoid an award on the ground of an impossibility created by him-
self, after the award, or indeed beforehand, if he created it for the
purpose of evading an expected award.

This impossibility may be actual, or it may be that created by
law ; for an award which requires that a party should do what the
law forbids him to do is void, either in the whole, or else for so
much as is thus against the law, if that illegal part can be severed
from the rest.

An award must be reasonable ; if it be of things in themselves of
no value or advantage to the parties, or out of all proportion to the
justice and requirements of the case, or if it undertake to determine
for the parties what they should determine for themselves, as that
the parties should intermarry, it is void. *

Lastly, the award must be final and conclusive. This necessity
springs also from the very purpose for which the law favors arbitra-
tion, namely, the settlement and closing of disputes. It is not a valid
objection to an award, that it is upon a condition, if the condition
be clear and certain, consistent with the rest of the award, in itself
reasonable, and such that there could be no doubt whether it were
performed or not, or what were the rights or obligations dependent
upon it.

An award may be open to any or all of these objections in part,
without being necessarily void in the whole. So much of it as is
thus faulty is void ; but if this can be severed distinctly from the
residue, leaving a substantial, definite, and unobjectionable award
behind, this may be done, and the award then will take effect. It
is therefore void in the whole because bad in part, only where this
part cannot be severed from the residue ; or where, if it be se\ ered
and amended, leaving the residue in force, one of the parties will
be held to an obligation imposed upon him, but deprived of the ad



SUBMISSION AND AWAED. 239

vantage or recompense which it was intended that he should have.
Generally, in the construction of awards, they are favored and
enforced, wherever this can properly be done.

If the submission be in the most general terms, and the award
equally so, covering " all demands and questions " between the par-
ties, either party may still show that a particular demand either did
not exist, or was not known to exist, when the submission was
entered into, or that it was not brought before the notice of the arbi-
trators, or considered by them ; and then the award will not be
permitted to affect this demand.

If, by an award, money is to be paid in satisfaction of a debt, this
implies an award of a release on the other side, and makes this
release a condition to the payment.

There is no especial form of an award necessary in this country.
If the submission requires that it should be sealed, it must be so.
And if the submission was made under a statute, or under a rule of
court, the requirements of the statute or the rule should be followed.
But even here mere formal inaccuracies would seldom be permitted
to vitiate the reward.

If the submission contains other directions or conditions, as that it
should be delivered to the parties in writing, or to each of the
parties, such directions must be substantially followed. Thus, in
the latter case, it has been held that it is not enough that a copy be
delivered to one of the parties on each side, but each individual
party must have one.

It may happen, where an award is offered in defence, or as the
ground of an action, that it is open to no objection whatever for
any thing which it contains or which it omits ; and yet it may be set
aside for impropriety or irregularity in the conduct of the arbitrat-
ors, or in the proceedings before them. Awards are thus set aside
if ." procured by corruption or undue means." This rule rests,
indeed, on the common principle, that fraud vitiates and avoids
every transaction.

So, too, it may well be set aside if it be apparent on its face that
the arbitrator has made a material mistake of fact or of law. It
must, however, be rather a strong case in which the court would
receive evidence of a mere mistake, either in fact or in law, which



240 ARBITRATION.

did not appear in the award, and was not supposed to spring from
or indicate corruption.

Another instance of irregularity is the omission to examine
witnesses. ; or an examination of them when the parties were not
present, and their absence was for good cause ; or a concealment by
either of the parties of material circumstances ; for this would be
fraud. So if the arbitrators, iu case of disagreement, were author-
ized to choose an umpire, but drew lots which of them should choose
him. But it has been held enough that each arbitrator named an
umpire, and lots were drawn to decide which of these two should be
taken, because it might be considered that both of these men were
agreed upon. And if an umpire be appointed by lot, or otherwise
irregularly, if the parties agree to the appointment, and confirm it
expressly, or impliedly by attending before him, with a full
knowledge of the manner of the appointment, this covers the irreg-
ularity.



SECTION n.

THE REVOCATION OF A SUBMISSION TO ARBITRATORS.

IT is an ancient and well-established rule, that either party may
revoke his submission at any time before the award is made ; and by
this revocation render the submission wholly ineffectual, and of
course take from the arbitrators all power of making a binding
award. And, generally, this power exists until the award is made.

In this country, our courts have always excepted from this rule
submissions made by order or rule of court ; for a kind of jurisdic-
tion is held to attach to the arbitrators, and the submission is quite
irrevocable, except for such causes as make it necessarily inoperative.

There is a strong reason why a submission by order of court, or
before a magistrate, should be preferred where it can be had, from the
fact above stated, that the law permits any party who finds an award
is going against him to revoke his submission or reference when he
will, before the award is made ; provided the award was only by
agreement out of court, or not before a magistrate. In some of oui



N

REVOCATION OP A SUBMISSION TO ARBITRATION. 241

States, the statutes authorizing and regulating arbitration provide
for the revocation of the submission.

It should be stated, however, that, as an agreement to submit is a
valid contract, the promise of each party being the consideration for
the promise of the other, a revocation of the agreement or of the
submission is a breach of the contract, and the other party has his
damages. And damages would generally include all the expenses
the plaintiff has incurred about the submission, and all that he has
lost by the revocation, in any way.

If either party exercise this power of revocation, he must give
notice in some way, directly or indirectly, to the other party ; and
until such notice, the revocation is inoperative.

Bankruptcy or insolvency of either or both parties does not neces-
sarily operate as a revocation, unless the terms of the agreement to
refer, or the provisions of the insolvent law, required it. But the
assignees acquire whatever power of revocation the bankrupt or
insolvent possessed, and, generally, at least, no further power.

The death of either party before the award is made vacates the
submission, if made out of court, unless that provides in terms for
the continuance and procedure of the arbitration, if such an event
occur. But a submission under a rule of court is not revoked or
annulled even by the death of a party. So the death or refusal or
inability of an arbitrator to act would annul a submission out of
court, unless provided for iii the agreement ; but not one under a
rule of court, unless for especial reasons, satisfactory to the court,
which would make an appointment of a substitute, if it saw fit to
continue the reference.

It may be well to add, that, after an award is fully made, neither
of the parties without the consent of the other, nor either nor all of
the arbitrators without the consent of all the parties, have any
further control over it.

If the submission provides for any method of delivering the award,
this should be followed. If not, it is common for the referees to
deliver the award to the prevailing party or his attorney, on pay-
ment by him of the fees of arbitration. Then the prevailing party
looks to the losing party, for the whole, or a part, or none of the
costs, as the award may determine.



242 ARBITRATION.

The award should be sealed, aud addressed to all the parties ; and
it should not be opened except in presence of all the parties, or of
their attorneys, or with the consent of those absent indorsed on the
award. If the submission is under a rule of court, it should be
returned to court by the arbitrators, or the counsel receiving it,
sealed, and opened only in court, or before the clerk, or with the
written consent of parties.

The submission, or agreement to refer, may be made by exchange
of Bonds, each party executing and delivering a Bond to the other
party.

This would be a formal proceeding. But, as has been already
said, no especial form is necessary ; and often a very simple one,
like that below, would suffice.

(86.)
Simple Agreement to Refer.

Know all Men, That we, of

and of do hereby promise and agree, to and

with each other, to submit, and do hereby submit, all questions and claims between
us (or any specific question or claim, describing if) to the arbitrament and deter-
mination of (here name the arbitrators) whose decision and award shall be final,
binding, and conclusive on us ; (add if there are more arbitrators than one, and it is
intended that they may choose an umpire) and, in case of disagreement between the
said arbitrators, they may choose an umpire, whose award shall be final and con-
elusive ; (or add, if there be more than two arbitrators) and, in case of disagree-
ment, the decision and award of a majority of said arbitrators shall be final and
conclusive.

In "Witness Whereof,

(Signatures.)

(87.)
Arbitration Bond. One or more Arbitrators.

Know all Men by these Presents, That I, (one of the parties)

am held and firmly bound unto (the other party) In the sum of

dollars, lawful money of the United States of America, to be paid to
the suid (the other party) executors, administrators, or assigns ; for whid

payment, well and truly to be made, I hereby bind myself, my heirs, executors
and administrators, firmly by these presto**



FOKMS Uf AEBITKATION. 243

Sealed with my seal Dated the day of one

thousand eight hundred and

The Condition of the above Obligation is such, Ihat if the above
bounden shall well and truly submit to the

decision of (the referee) named, selected, and chosen arbitrator as

well by and on the part and behalf of, the said as of

the said between whom a controversy exists, to hear all

the proofs and allegations of the parties of and concerning
(here set forth the claims or questions referred)

and all matters relating thereto, and that the award of the said arbitrator be made
in writing, subscribed by him (or them) and attested by a subscribing witness,
ready to be delivered to the said parties on or before the day

of next. But before proceeding to take any testimony therein,

the arbitrator shall be sworn, " faithfully and fairly to hear and examine the
matters in controversy between the parties to these presents, and to make a just
award according to the best of his (or their) understanding." And the said parties
to these presents do hereby agree, that judgment in the case (in question)

shall be rendered upon the award which may be made pursuant to
this submission, to the end that all matters in controversy hi that behalf, between
them, shall be finally concluded. Then the above obligation to be void, otherwise
to remain in full force and virtue.

(Signature.) (Seal.)

Sealed and Delivered in Presence of

[To make the contract complete, the other party should execute and deliver a
counterpart to this Bond.]

(88.)
Award of Arbitrators.

To all to whom these Presents shall Come, We (names of the
arbitrators) to whom was submitted as arbitrators the matters hi controversy exist-
ing between as by the condition of their respective bonds of sub-
mission, executed by the said parties respectively, each unto the other, and bearing
date the day of one thousand eight hundred and
more fully appears.

Now, therefore, know ye, That we the arbitrators men-

tioned in the said bonds having been first duly sworn according to law, and having
heard the proofs and allegations of the parties, and examined the matters hi con-
troversy by them submitted, do make this award in writing ; that is to say, the
said (here follows the award)

In Witness Whereof, have hereunto subscribed these presents,

this day of one thousand eight hundred and

(Signatures.)
- In the Presence of



244 THE CABKIAGE OF GOODS AND PASSENGEKS.

CHAPTER XX.

THE CAJZRULGH OF GOCXD8



SECTION I.
A PRIVATE CARRIER.

ONE who carries goods for another is either a private carrier or a
common carrier.

A private carrier is one who carries for others once, or some-
times, but who does not pursue the business of carrying as his
usual and professed occupation. The contract between him and the
owner of the goods which he carries is one of service, and is
governed by the ordinary rules of law. Each party is bound to
perform his share of the contract. Such a carrier must receive,
care for, carry, and deliver the goods, in such wise as he bargains
to do.

If he carries the goods for hire, whether actually paid or due, he
is bound to use ordinary diligence and care ; by which the law
means such care as a man of ordinary capacity would take of his
own property under similar circumstances. If any loss or injury
occur to the goods while in his charge, from the want of such care
or diligence on his part, he is responsible. But if the loss be
chargeable as much to the fault of the owner as of the carrier, he
is not liable. The owner must show the want of care or diligence
on the part of the private carrier, to make him liable ; but slight
evidence tending that way would suffice to throw upon him the
burden of accounting satisfactorily for the loss. And if there is
such negligence on the part of the carrier, or of a servant for whom
he is responsible, the carrier is liable, although the loss be caused
primarily by a defect in the thing carried.

If he carries the goods without any compensation, paid or prom-
ised, he is, in the language of the law, a gratuitous bailee, or man-
datary : he is now bound only to slight care ; which is such care as



THE COMMON CAERIEE. 245

every person, not insane or fatuous, would take of his own property.
For the want of this care, which would be gross negligence, he is
responsible, but not for ordinary negligence.

We sum up what may be said of the private carrier in the
remark, that the general rules which regulate contracts and mutual
obligations apply to the duties and the rights of a private carrier,
with little or no qualification. But it is otherwise with a common
carrier.



SECTION H.

THE COMMON CARRIER.

THE law in relation to the rights, the duties, and the responsibili-
ties of a common carrier is quite peculiar. The reasons for it are
discernible, but it rests mainly upon established usage and custom.
And, as these usages have changed considerably in modern times,



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 25 of 70)