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January 1, 1834


IN error to the circuit court of the United States, for the county of Washington, in the district of Columbia.

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, 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 two thousand dollars.

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

'Articles of agreement, made and concluded this 22d day of October, in the year of our Lord 1828, by and between John Lutz, of Georgetown, in the district of Columbia, and agent for John M'Pherson, 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, Jun. as a dry goods store, to have and to hold said house, and receive peaceable possession on the 3d day of May next ensuing, and continue for the space of five years from said time, which will terminate on the 3d day of 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 two hundred and fifty dollars, 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.

'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. M'Pherson [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 the 28th day of 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. NICHOLLIS. 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 M'Pherson, of Frederick, are interested, do award the sum of eleven hundred and twenty-nine dollars and ninety-three cents 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, 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.

The case was argued by Mr Key, for the plaintiff in error, and by Mr Marbury and Mr Coxe, for the defendant.

For the plaintiff in error, the following points were relied upon.

1. That the award is void for uncertainty, in not stating who is to pay the money awarded, the defendant or the executors of John M'Pherson; and in not finding whether there was any arrear of rent due, nor how much, nor to whom.

2. That the award is void, not being mutual nor final, in leaving the rent unascertained, and its payment unenforced.

3. The award is void, not appearing to be made in the cause there being, in fact, another submission at the same time, to the same referees, of the same matters of controversy, by bond between the appellee, and the executors of M'Pherson, in reference to which the referees made the award.

4. The judgment of the court is erroneous; the submission, appointment of the third referee, award, and proceedings thereon, not being according to the act of assembly and the order of the court: 1st. The arbitrators ought not to have appointed a third person, until it was seen that they disagreed. 2d. When they appointed a third person, the defendant ought to have had notice of the person so chosen. The appointment and the award were made and filed the same day. 3d. No notice appears to have been given to the defendant, either of the appointment of the third person, or of the making, or of the return of the award.

Mr Key contended, that the award was defective in form. The reference was under an act of the assembly of Maryland, which directs the mode of proceeding in such cases. The lease on which the action was founded, was executed by the plaintiff in error, as an agent of M'Pherson; and yet the award is given against him, as if he had acted as the principal in the agreement. The award was made against him, imposing upon him a personal liability, when the declaration states, that in the contract he acted as agent, and the claim stated in it is a claim on him as the agent of M'Pherson. Thus the award is not in conformity with the submission; for the submission must be considered as having reference to the pleadings; and in the declaration, as well as in the articles of agreement, the plaintiff in error is stated to be the agent of M'Pherson. Yet the award finds against the plaintiff in error individually; and judgment is entered against him, not as agent, but individually.

The award is void for uncertainty. It does not say who shall pay the amount found due, whether it shall be paid by John Lutz or by the executors of M'Pherson. If it is a debt due by him as agent, he should, by the award, have been directed to pay it as agent, and his claim to repayment by the executors, would thus be clearly established. The award is not declared to be made in the suit in which the agreement to refer was entered. It does not say that the money is to ...

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