US SUPREME COURT DECISIONS

In the Circuit Court of the County of Washington, Linthicum instituted an action of covenant on articles of agreement by which Lutz covenanted that Linthicum should have peaceable possession of a certain house in Georgetown, and retain and keep the same for five years. Linthicum was evicted by Lutz before the time expired. The articles were spread upon record, by which it appeared, that they were made "by and between John Lutz, of, &c., and agent for John McPherson of Fredericktown in the State of Maryland of the one part and Otho M. Linthicum of Georgetown, &c., of the other part," and it is witnessed, "that the said John Lutz ,agent as aforesaid, has rented and leased," &c., the premises to Linthicum, and on the other hand Linthicum covenants to pay the rent, &c.,

as stated in the declaration. There was no covenant in the lease by Lutz for quiet enjoyment as stated in the declaration, but the latter was founded upon

the covenant implied by law in case of demises. The articles concluded with these words:

"In witness whereof, we, the said John Lutz and O. M. Linthicum, have hereunto interchangeably set our hands and seals, day and date above. "

John Lutz agent for John M. Pherson [L.S.] O. M. Linthicum [L.S.].

The defendant Lutz pleaded performance without praying oyez, and issue was joined. Afterwards, the parties, by consent, agreed to refer the cause, and accordingly, by a rule of court it was ordered

"That William S. Nicholls and Francis Dodge be appointed referees between the parties aforesaid, with liberty to choose a third person, and that they or any two of them, when the whole matter concerning the premises between the parties aforesaid in variance, being fairly adjusted, have their award in writing under their hands, and return the same to the court here, and judgment of the court to be rendered according to such award, and be final between the said parties."

The referees so named, on 28 January, 1833, chose John Kurtz the third referee, and afterwards, on the same day, made their award in the following words:

"We, the subscribers, appointed arbitrators to settle a dispute between Otho M. Linthicum and John Lutz in which the executors of the late John McPherson of Frederick are interested, do award the sum of $1,129.93, to be paid to the said Linthicum in full for all expenses and damages sustained by him in consequence of not leaving him in quiet possession of the house at the corner of Bridge and High Streets, in Georgetown (the demised premises) for the full term of the lease for five years. Any arrear of rent due from Linthicum, to be paid by him."

Signed by all the referees. Judgment was given by the circuit court for the full amount of the award so made and costs.

The articles purport to be made by Lutz and to be sealed by him, and not to be made and sealed by his principal. The description of himself as agent does not under such circumstances exclude his personal responsibility. But this very liability was necessarily submitted to the referees, and came within the scope of their award. chanrobles.com-red

Page 33 U. S. 166

It was objected to the award that it was uncertain, not mutual and final; that it does not state whether the money is to be paid by Lutz or the executors of McPherson; that it does not find the arrears of rent due, and to whom due: that it does not appear to be an award in the cause; that the award and the proceedings thereon are not according to the laws of Maryland; that the appointment of the third referee ought not to have been made until after the other two referees had met and heard the cause and disagreed thereon. The court held all these objections invalid.

Without question, due notice should be given to the parties of the time and place for hearing the cause by the referees, and if the award was made without such notice, it ought, upon the plainest principles of justice, to be set aside. But it is by no means necessary that it should appear upon the face of the award that such notice was given. There is no statute of Maryland, whose laws govern in this part of the district, which requires such facts to be set forth in the award. If no notice is in fact given, and no due hearing had, the proper mode is to bring such facts, not appearing, on the face of the award, before the court upon affidavit and motion to set aside the award. But prima facie, the award is to be taken to have been regularly made where there is nothing on its face to impeach it.

The statute of Maryland requires that notice of an award shall be given to the party against whom it is made by service of a copy three days before judgment is moved, and judgment is not to be entered but on motion and direction of the court. It was alleged that a copy of the award was not delivered.

By the Court:

"How that may have been we have no means of knowing, for nothing appears upon the record respecting it, and there is no ground to say that it ought to constitute any part of the record or that it is properly assignable as error. It is a matter purely collateral and in pais. If no such copy had been delivered, the proper remedy would have been to take the objection in the court below upon the motion for judgment, or to set aside the judgment for irregularity if there had been no waiver or no opportunity to make the objections before judgment. But in the present case, sufficient does appear upon the record to show that the party had full opportunity to avail himself of all his legal rights in the court below. The cause was referred at November term, 1832, pending the term, to-wit, on 18 January, 1833, the award was filed in court; the cause was then continued until the next term, viz., the fourth Monday in March, 1833, at which time the parties appeared by their attorneys, and upon motion and after argument of counsel, judgment was entered. We are bound to presume, in the absence of all evidence to the contrary, that all things were rightfully and regularly done by the court and that the parties were fully heard upon all the matters properly in judgment."

In the circuit court, Otho M. Linthicum, the defendant in error, instituted an action of covenant on a certain lease or article of agreement by which the defendant, John Lutz, demised to him a certain brick house in Georgetown for a term of five years at a rent specified in the same. Under this lease, chanrobles.com-red

Page 33 U. S. 167

the plaintiff, Linthicum, held possession of the premises according to the covenants in the said lease and made certain repairs. The declaration avers that before the end of the term for which the premises were so leased to the said Linthicum, the defendant, John Lutz, evicted and dispossessed him from the premises, whereby he lost the benefit of the repairs done to the same, and claims damages for the breach of the covenants in the lease and for eviction, amounting to $2,000.

The lease upon which the action was instituted was in the following terms:

"Articles of agreement made and concluded this 22 October in the year of our Lord 1828 by and between John Lutz, of Georgetown, in the District of Columbia, and agent for John McPherson, of Fredericktown, in the State of Maryland, of the one part, and Otho M. Linthicum, of Georgetown, and district aforesaid, of the other part, witnesseth that the said John Lutz, agent as aforesaid, has rented or leased to the said O. M. Linthicum all that brick house, with the appurtenances thereto belonging, situated on the corner of High and Bridge Streets in Georgetown aforesaid, with the alley thereto attached, of thirteen feet six inches, fronting on Bridge Street and running parallel with said house, now in possession and occupied by Jacob Carter, Jr., as a dry goods store, to have and to hold said house, and receive peaceable possession on 3 May next ensuing and continue for the space of five years from said time, which will terminate on 3 May, 1834. And the said O. M. Linthicum, on his part, doth hereby covenant and agree for himself, his heirs and assigns to pay to the said John Lutz, agent as aforesaid, or his successor the just and full sum of $250 for each and every year for the aforesaid term of five years, the rent to be paid half yearly as the same may become due, and all repairs that may be done by the said O. M. Linthicum for his own convenience to be at his own expense, and any repairs done by him to be left on the premises as relates to the house; but in case he should erect a warehouse on the vacant ground, shall have the privilege to remove the same at his will and pleasure within said time and to leave the house in as good condition at the end of said term as when he gets possession, the usual wear and tear excepted. "

Page 33 U. S. 168

"In witness whereof we, the said John Lutz and O. M. Linthicum, have hereunto interchangeably set our hands and seals, day and date above. JOHN LUTZ, Agent for J. McPherson [L.S.]. O. M. LINTHICUM [L.S.]."

"Signed, sealed and delivered in presence of James Gettys, John White."

The defendant, John Lutz, pleaded performance, and afterwards the following agreement of reference was entered into by the counsel for the parties in the case. The record contains the following entries relative to the further proceedings in the case.

"Whereupon it is ruled by the court here that the said William S. Nicholls and Francis Dodge, gentlemen, be appointed referees between the parties aforesaid, with liberty to choose a third person, and that they or any two of them, when the whole matter concerning the premises between the parties aforesaid in variance being fairly adjusted, have their award in writing, under their hands, and return the same to the court here, and judgment of the court to be rendered according to such award and be final between the said parties, and afterwards, to-wit on 28 January, 1833, the said William S. Nicholls and Francis Dodge file in court here the following certificate appointing John Kurtz, with themselves, the referees in the premises, to-wit: "

"We certify that, pursuant to the terms of reference, in the case of Otho M. Linthicum v. John Lutz, and before proceeding to act therein or make any award, we, the referees, did nominate and appoint John Kurtz, whose name is subscribed to the within award, the third referee to act, together with ourselves, in deciding the controversy between the parties, and submitted to us. W. S. NICHOLLS. FRANCIS DODGE."

"And on the same day, the referees file in court here their award in manner and form following, to-wit: "

"We, the subscribers, appointed arbitrators to settle a dispute between Otho M. Linthicum and John Lutz, in which the executors of the late John McPherson, of Frederick, are interested, do award the sum of $1,129.93 to be paid to the said Linthicum in full for all expenses and damages sustained by him in consequence

Page 33 U. S. 169

of not leaving him in quiet possession of the house at the corner of Bridge and High Streets, Georgetown, for the full term of the lease for five years -- any arrear of rent due from Linthicum to be paid by him. W. S. NICHOLLS. J. KURTZ. FRANCIS DODGE."

The circuit court gave judgment for the plaintiff on the award, and the defendant prosecuted this writ of error. chanrobles.com-red

Page 33 U. S. 175