Gates County NcArchives Court.....Daniel Southall, Kinchen Norfleet V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 28, 2009, 6:22 pm

Source: Nc Reports
Written: 1819

Kinchen Norfleet v. Daniel Southall

From Gates

May Term 1819

Bill for the specific execution of a contract. A and B, having at their joint 
expense, built a set of mills, A agreed to convey to B, his moiety of the 
mills, upon B's paying to him, the sum which the mills cost him: and it was 
further agreed, that four persons, then named by the parties, should determine 
this sum. A then declared, that he would no longer he responsible for any 
damage the mills might sustain, he being no longer the owner of any part of 
them; and B proceeded and expended considerable sums in improving the mills. 
The arbitrators met, and were unable to agree in opinion, as to the sum which 
the mills cost A, who refused to have an umpire chosen. The bill prayed that A 
might he decreed to render an account of what the mills cost him, that he 
might receive that sum, and execute a conveyance to B. The bill dismissed; 
because,

It seeks to enforce an agreement which the parties did not enter into; their 
agreement being, that B should pay to A, the sum which the arbitrators should 
determine, and not the sum which A should state in account, or that the Master 
should find upon taking an account.

Where a reference is made to several persons, the concurrence of all is 
necessary, unless it be expressly agreed in the submission, that a less number 
may make the award: and, as either party may revoke the authority given to the 
arbitrators in common cases before an award, so either party may refuse to 
have an umpire chosen, where the arbitrators disagree.

Here the arbitrators were to settle the price of the purchase; this price is 
an essential part of the contract; the Court cannot substitute itself for the 
arbitrators, where a substantial thing is to be done by them. The Court will 
not even divide an estate, where the parties have selected particular persons 
to do it; for it is a personal confidence which cannot be reposed in others 
against the will of its authors.

The bill in this case was filed to enforce the specific execution of an 
agreement, alleged to have been entered into between the Complainant and 
Defendant. The parties having built a saw and grist mill on Bennett's creek, 
at their joint expense, it was agreed that Southall should convey his title 
thereto to Norfleet, upon Norfleet’s paying to him the sum which the mill had 
cost him: and it was further agreed that four persons then named should 
determine what sum Southall had thus expended. When the agreement was made, 
Southall declared in the presence of witnesses, that no part of the mill 
belonged to him, and that he would no longer be responsible for any damage it 
might sustain: upon which Norfleet proceeded to complete the mill at his own 
expense, in doing which he disbursed a considerable sum. The arbitrators 
chosen by the parties, met upon the business, but were unable to agree in the 
estimate of the sum expended by Southall, who rejected every proposition to 
refer the matter to an umpire to be chosen by the arbitrators, or to another 
set of arbitrators; or to make a title upon being paid the cost of the mill. 
The bill prayed that Southall might be decreed to render an account of what 
the mill cost him, and to convey his title to the moiety of the mill, upon 
receiving the amount, so expended.

To this bill the Defendant demurred, and the question arising upon the 
demurrer was sent to this Court.

Taylor, Chief-Justice: It is a general rule that an agreement, to be 
specifically enforced, should be certain and defined, and be proved or 
admitted to have been concluded by the parties. But the objection to this bill 
meets us in limine, that the agreement sought to be enforced, was never 
entered into by the parties. The bill prays that the Defendant may be 
compelled to convey on being paid the money he has expended in building the 
mill; whereas, his contract was that he would convey, upon four persons, then 
named by the parties, ascertaining what it cost him. The parties would not 
take upon themselves to ascertain the price of Southall's moiety, but selected 
certain individuals to determine it, in whose probity and skill, in the 
subject referred to them, they had full confidence; and there is no reason to 
infer that they were willing to transfer this confidence to any others; for 
the arbitrators were nominated without allowing them to choose an umpire, in 
the event of a disagreement, or making any for such a case. So that the legal 
consequence was, that the question referred to the arbitrators could not be 
determined, unless they were unanimous in their judgment; it being very clear, 
that where a reference is made to several persons, the concurrence of all is 
necessary, unless it be expressly provided for in the submission that a less 
somber may make the award. In substance and effect, then Southall's agreement 
was "not that I will sell you my share of the mill upon your paying me what it 
cost; but I will sell it to you, provided four certain persons, to be named by 
us, unite in their judgment and opinion as to what it cost. If they do not 
concur in opinion, there is no contract between us." The parties have made an 
effort towards contracting, which has terminated in an inchoate agreement: and 
if this Court were to direct a reference to the Master, or any other person, 
to ascertain the price, and decree upon such a report, it would be making a 
contract for the parties, and then enforcing it.

Suppose, before the arbitrators had met, either party became dissatisfied with 
the agreement they had made, for any reason, good or bad, it would have been 
perfectly competent for either to revoke the authority of the arbitrators; and 
if they had proceeded to make an award afterwards, the party revoking would 
not have been bound by it. Can it be loss reasonable, that if the arbitrators 
make an unsuccessful attempt to estimate the price, either party may refuse to 
nominate an umpire, or to appoint other arbitrators? There may be as much 
reason, or more, to avail themselves of the locus penitentae at the latter 
period, as at the former one. It is a right equally retained by both parties, 
since they have not surrendered it by the submission on the contract, and 
neither can compel the other to proceed beyond the stipulation.

But it is said, that the sale of Southall's moiety was complete; and that all 
the arbitrators had to do, was to ascertain the price, which was a mere matter 
of account, within the power of any person who could calculate, and equally 
within the power of the Master in Equity. That it was not easily done, is 
demonstrated by the arbitrators not having been able to accomplish it; and it 
cannot be doubted that they were selected with a circumspect view and 
calculation of their peculiar fitness for the task, and of their competency to 
derive, from local observation and experience, all the fads necessary to 
enlighten their judgment. If such persons were oppressed by the inquiry, it is 
utterly improbable that any one appointed by the Court would find it less 
embarrassing, or be able to conduct it in a manner more likely to lead to a 
satisfactory result. A price ascertained by persons chosen as these 
arbitrators were, would, if is probable, be a very different thing from a 
price ascertained by a Master in Equity: and to compel Southall to convey upon 
receiving the latter, would be exercising an arbitrary discretion, which this 
Court wholly rejects. It may not be difficult, in general, to set a price on 
anything which is the subject of sale, to estimate the value of a rent, to 
decide on the quality of a piece of merchandise, to settle the shares of gain 
and loss between partners; yet, when the parties have chosen arbitrators to do 
it, the whole current of authorities repels the interposition of this Court. 
Stronger reasons exist to prevent their interference in the particular case, 
to ascertain the costs of the mills; a task, which, according to the usual 
manner of conducting such business in this country, by persons doing the chief 
labor within themselves, as it is called, and with their own slaves, calls for 
a knowledge of a peculiar kind, and a familiarity with customs and practices, 
which change with the geographical limits of the State. The price of property 
is an essential article in the sale, and the books furnish no case or 
principle authorizing the Court to substitute itself for the arbitrators, 
where a substantial thing is to be settled by them. 6 Vesey, 34. They will not 
do so, even to divide an estate, where the parties have selected particular 
persons to do it; because it is a personal confidence, which, in the nature of 
things, cannot be reposed in others against the will of its authors. In short, 
the authorities of law are uniform on the subject, from the first trace that 
can be found in the books, down to the case of Milner v. Grey, 14 Ves. 400; 
and the Court is of opinion, that there are stronger reasons for refusing 
relief in this case than appeared in that. It is satisfactory to perceive, 
that before the ample discussion which the subject has recently undergone in 
England, a great Judge in a sister State, had applied the powers of his 
vigorous intellect to its elucidation, and discussed it in a manner the most 
perspicuous and convincing. 1 Wash., 295. 

The demurrer must be sustained, and the bill dismissed with costs.

Cited: Oakley v. Anderson, 93 N. C. 112.

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