Bridges vs. Vick.
1. Where a cause depending in court is submitted to arbitration by a rule of court, and • the award is to be made the judgment of the court, this submission to arbitrators does not operate as a discontinuance of the cause.
2. The circuit judge in his charge to the jury, should confine himself toan explicit statement of the principles, which, in his judgment, have an.immediate application to the case before him, and his not having charged the jury on every point which might have had some bearing on the points in controversy,'will not be regarded as error, more especially if he is not requested to charge upon such points.
This action was brought by Vick against Bridges in the circuit court of Wilson county, on the 11th day of June, 1839. Plaintiff declared an assumpsit on a special contract of hiring, and the defendant pleaded non-assumpsit, and other pleas which need not be set out as the case did not turn upon them. Issue was, joined on the plea of non-assumpsit. At the February term, 1840, the parties came into court and obtained an order of court that their case should be submitted to'arbitration. This order was madev By the terms of the order the award was to be returned and made the judgment of the court. At the May termsucceeding, the order of reference was renewed. At the September term, the following entry was made: “The order heretofore made referring this cause to arbitration is set aside, and the cause ordered to stand for trial at the next term.”
At the May term, 1841, it was submitted to a jury, Judge S. Anderson presiding. The facts, so far as it is necessary here to set them forth are these. Hays and Bridges were partners in the surveying business, and engaged the services of Vick on a surveying expedition to Arkansas, at the rate of $15 per month. They were also to pay his expenses in going to and returning from Arkansas. Vick went to Arkansas, and was there told by Hays that no profitable job of surveying could then be got, and that he might seek such other employment as he could get. It does not appear that Vick either assented to this arrangement or expressed his dissatisfaction at it. This was in November. He did get other employment, and was engaged in chopping wood and driving a wag-gon. Hays paid Vick seven dollars and fifty cents, and Vick retained two axes and a blanket, the property of Hays.
There was proof tending to show that Vick was in Arkansas in *517March following, ready to engage in the business of Bridges and Hays. The judge charged the jury that if after Hays and Vick got to Arkansas, Hays dismissed Vick with his assent, Vick was not entitled to recover, and if without his consent ho was entitled to recover, and that if he merely permitted Vick to get other employment until Hays should get ready to go to surveying, in that event the defendant would be liable to Vick, but Vick must account to Bridges for his earnings.
The jury rendered a verdict in favor of the plaintiff for the sum of $87 50. A motion for a new trial was made and overruled, and judgment rendered on the verdict. Defendant appealed in error.
22. M. Burton, for the plaintiff in error.
Stokes, for the defendant in error’.
Giíeev, J.
delivered the opinion of the court.
1. It is contended in this case, that the order of reference was a discontinuance of the cause, and that the court had no power after the submission to proceed in the cause; and the case of Jewell vs. Blankenship, 10 Yerg. 437, is relied on.
In that case, the submission of the cause to arbitration was made out of court, by agreement of the parties. In such case the court held it was a discontinuance of the cause in court. See, also, 1 Jh. Rep. 315: 18 Jh. 22. But here the submission was by a rule of court. The cause was still in court, to await the award, which, by the terms of the submission, was to be made the judgment of the court. The arbitrators made no award, and the court proceeded with the cause. This it clearly had the power to do. White vs. Puryear, 10 Yerg. 441: Watson on Arb. and Aw. 25.
2. It is objected, that the court did not charge the jury that the assent of Vick in leaving the employment of Hays might be inferred from his conduct, in seeking other employment. The facts of the case did not call for sucha charge from the judge. The employment in which Vick engaged, was that of a day laborer, and did not at all interfere with his readiness to attend Hays in his surveying at any moment his services might be required. Besides, the judge was not requested to give the charge suggested, and we cannot regard as error, the failure of the court below to charge every proposition that may possibly have some remote application to the *518case; such a course would rather tend to bewilder than to enlighten the jury. In declaring the law to the jury, it is highly proper for the judge to confine himself to a clear and explicit statement of those principles, which, in his judgment, have an immediate application to the facts of the case before him.
3. Upon the facts of the case, there is no ground for a new trial. There is no evidence what amount Vick earned chopping wood and driving a waggon in Arkansas, and therefore we cannot see that the jury has not made a sufficient allowance for the profit of such work, and for the axes and blanket retained by Vick. There is, therefore, no error in the judgment.
Let the judgment be affirmed.