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Brumbaugh . Chapman.

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was intended to be conveyed, appears from the further fact that the vendee at once executed and delivered to the vendor the notes and mortgage for the balance of the purchase-money according to the price previously agreed on-all of which were subsequently paid before the commencement of this suit. The case of Reid v. Sycks, 27 Ohio St. 285, cited to us, is quite different from the one presented by the record before us, and is not in conflict with what has just been announced. It was there simply held that the deed did not execute a prior agreement of the vendee to assume and pay an existing lien upon the property, that had been assumed by the vendee as part of the purchase-money. As a rule the deed does not execute any of the stipulations of the vendee as to the consideration to be paid for the property. Its office is to execute the agreement on the part of the vendor. And the learned judge, in delivering the opinion in that case, was careful to observe this distinction, in the use of the language: "The obligation to pay the purchase-money was not merged by the deed, which was only in performance on the vendor's part. * The covenant to convey is performed by the conveyance; but covenants relating to other things than a mere conveyance are not thus performed." The case of Whitbeck v. Waine, 16 N. Y. 532, is, also, plainly distinguishable from the one before us. There the previous written agreement contained an express provision for an increase or rebate of the purchase-money in proportion to any excess or deficiency which might exist in the quantity of the land. And, a portion of the purchasemoney remaining unpaid, and no bond or mortgage having been given, the court was of the opinion that the provision for an increase or rebate for any excess or deficiency in the land, remained in force as to any unpaid residue of the purchasemoney, notwithstanding the execution of the deed; observing, however, that had such securities been given "at the time the deed was delivered, and they had not contained a provision, respecting deficiency, like that in the contract, a different question would have arisen from the one presented." The cases of Vail v. McMillen, 17 Ohio St. 617, and Burkhardt v. Burkhardt, 36 Ohio St. 261, are simply to the effect that the

Brumbaugh . Chapman.

deed is not conclusive as to the consideration paid or agreed to be paid by the purchaser.

The only question that remains, is whether a recovery can be had by the plaintiff upon the terms of the deed itself. There is no express covenant in the deed that the land conveyed contains any definite number of acres. The designation of the number of acres is in connection with, and as a part of, the description of the land conveyed. If, at the execution of the deed, the intention of the parties had been that a definite number of acres should be assured to the vendee, the proper way would have been, and it would have been as easy as proper, to incorporate a covenant in the deed to that effect. It would have been as easy to do so as to covenant that it is free from incumbrances. No such covenant as to quantity, having been inserted in the deed, no recovery can be had upon the deed itself for any deficieney in the number of acres in the tract conveyed by it. Powell v. Clark, 5 Mass. 355; Perkins v. Webster, 2 N. H. 287; Large v. Penn, 6 Serg. & Rawle, 488; Williams v. Hathaway, 19 Pick. 387; Kreiter v. Bomberger, 82 Pa. St. 59; Beall v. Berkhalter, 26 Geo. 564. And it may be said in this case, as was said by Justice Sharswood, in the case of Kreiter v. Bomberger: "The vendee threw out no anchor to windward as to quantity as he did as to title by his covenant of general warranty, If within any period short of six years from the time of the transaction, a contract of purchase and sale, fully execnted by delivery of the deed and payment of the purchase-money, can be overhauled and materially changed, very disastrous consequences will ensue not only to vendors called upon to refund what they had every reason to believe was their own, and had a right to deal with accordingly, but to the public at large, by sowing the seeds of an abundant crop of lawsuits."

There is no doubt but that, in an action by the vendee for relief against mistake in the transaction, or fraud practiced by the vendor, any considerable deficiency would be entitled to consideration as tending to show either that a fraud had been practiced, or that a mistake had intervened. But, as before

Rice v. Hassenpflug.

shown, no such complexion has been given to this action either by the averments of the petition or the proof introduced on the trial.

Judgment affirmed.

RICE v. HASSENPFLUG.

Arbitration- Waiver of oath of arbitrator- Power of unsworn arbitrator to administer oaths-Presumption as to what matters' considered by arbitrator— Interest-Usury.

1. Where parties to an arbitration proceed to a hearing of the controversy before an unsworn arbitrator without objection, and without being misled into the belief that he has been duly sworn, they thereby waive the oath of the arbitrator and all objections to the award based on that omission.

2. It is not necessary that an arbitrator himself administer the oath to the witnesses before him; and when he is a justice of the peace, he is authorized (by section 5606 of the Revised Statutes) to administer a valid oath to the witnesses, although he is himself unsworn as arbitrator. 3. Where the written submission is of all differences, damages and claims whatsoever existing between the parties, and the award purports to have been made " as per submission in writing," the presumption is authorized that all claims and matters of difference presented by the parties were considered.

4. Where the parties to such submission stipulate, as one of its terms, that the arbitrator in calculating whatever may be due on a matured promissory note calling for interest at ten per cent. shall compute interest thereon at that rate, such submission is not a usurious contract, and an award rendered in pursuance of it is valid.

(Decided November 1, 1887.)

ERROR to the Circuit Court of Pickaway County.

P. G. Bostwick and P. C. Smith, for plaintiff in error. 1. This being a statutory arbitration, the statute, section 5606 of the Revised Statutes, requires that the arbitrator be sworn. The oath is essential to the validity of the award. Day v. Hammond, 57 N. Y. 479; Combs v. Little, 3 Green Ch. (N. J.) 310; Inslee v. Flagg, 2 Dutch. 368; Lile v. Barnett, 2

Rice v. Hassenpflug.

Bibb (Ky.) 166; Overton v. Alpha, 13 La. Ann. 558; Bethea v. Hood, 9 La. Ann. 88; Frissell v. Fickes, 27 Mo. 557; Toler v. Hayden, 18 Mo. 399; Fassett v. Fassett, 41 Mo. 516; Jackson v. Steele, Sneed, (Ky.) 21; Otis v. Northrop, 2 Miles (Pa.) 350; Bulson v. Lohnes, 29 N. Y. 291; Howard v. Sexton, 1 Denio, 440; Tucker v. Allen, 47 Mo. 488; Valle v. North Mo. R. Co. 37 Mo. 445.

The award cannot be enforced as an award upon submission at common law. Deerfield v. Arms, 20 Pick. 480; Morse on. Arbitration, 48.

2. The award itself must show that the arbitrator passsed upon all matters submitted to him. A failure to do so renders the award invalid, and it cannot be sustained by parol testimony. 6 Wait Ac. and Def. 538, 539; Harker v. Hough, 2 Halst. 428; Mitchell v. Staveley, 16 East, 58; Swan's Treatise, 386, 387, 389; Morse on Arbitration, 342, 343, 345, 349, 359, 361, 363; Richards v. Drinker, 1 Halst. 307, 320; Carnochan v. Christie, 11 Wheat. 446; Russell on Arbitration, 249; James v. Thurston, 1 Cliff. C. C. 367; Young v. Kinney, 48 Vt. 22; Caldwell on Arbitration, 239; Kyd on Award, 172; Hall v. Vanier, 6 Neb. 85.

3. The award itself must show that the arbitrators met at the place named in the submission, and the failure of the award to show that fact cannot be cured by parol testimony. Swan's Treatise, 387; Strum v. Cunningham, 3 Ohio, 286; Morse on Arbitration, 150; Wilcox Forms.

4. There is usury embodied in both the award and the judgment rendered thereon, which renders both invalid. No contract, however framed, however unlike a contract for a loan, or for interest, it might apparently be, can hold good if the ultimate effect of it be to secure more than the legal rate of interest for the loan of money. Clague v. Creditors, 2 La. 114; 7 Wait Ac. & Def. 611; Scott v. Lloyd, 9 Pet. 446: Spaulding v. Bank of Muskingum, 12 Ohio, 546; Beals v. Lewis, 43 Ohio St. 220; Moncure v. Dermott, 13 Pet. 345, 355; De Wolf v. Johnson, 10 Wheat. 367; Smith v. Cross, 90 N. Y. 554.

If usury is incorporated in the judgment, the case will be reversed. Bates v. Peoples' Sav. & Loan Ass'n, 42 Ohio St.

Rice v. IIassenpflug.

655; Van Ausdal v. Potterf, 41 Ohio St. 677; 3 Par. Con. 107; Kilgore v. Dempsey, 25 Ohio St. 420; Goode v. Sutton, 29 Ohio St. 587; 3 Har. Dig. 2126.

Page, Abernethy & Folsom, for defendant in error.

1. The award is a good common law award. It is not pretended that the parties proceeded according to the statutes, and the statutes have no application to any part of the proceeding. Childs v. Updyke, 9 Ohio St. 333; Wilcox v. Singletary, Wright, 420; West. Female Seminary v. Blair, 1 Dis. 370.

2. At common law, both the submission and the award might be verbal. Morse on Arbitration. 256; Comyn's Dig. Arbitrament, E. 20; Wilcox v. Singletary, supra; Tullis v. Sewell, 3 Ohio, 513.

3. At common law the arbitrator need not be sworn. Morse on Arbitration, 110; Daggy v. Cronnelly, 20 Ind. 474.

4. At common law the witnesses need not be sworn. Morse on Arbitration, 279, 280, 290; 1 Steph. Nisi Prius, 130; Musselbrook v. Dunkin, 9 Bingh. 605.

6. Nothing was said in the submission about delivery or publication, and both parties were bound to take notice of it. Houghton v. Burroughs, 18 N. H. 499.

The delivery of a copy of an award is a publication of it. Low v. Nolte, 16 Ill. 475.

7.

The doctrine by which awards are required to be mutual is not applied in the strict sense in which it was formerly taken. Horrel v. M'Alexander, 3 Rand. (Va.) 94.

An award ordering a payment of a sum of money carries in itself a mutuality, as it must be held to be a satisfaction of the matters submitted. Mead v. Ellis, 3 Kames, 254; Gordon v. Tucker, 6 Me. 247; Gaylord v. Gaylord, 4 Day, 422; M'Kinstry v. Solomons, 2 John. 57; In re Brown, 1 P. & D. 391; s. c. 9 A. & E. 522; Hayllar v. Ellis, 3 M. & P. 553; s. c. 6 Bingh. 225; Harrison v. Creswick, 13 C. B. 399.

8. An award may be of a gross sum. Morse on Arbitration, 254, 255, 265; Lowenstein v. McIntosh, 37 Barb. 251; 6 Wait Ac. & Def. 540, 541, 546, 547.

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