« PreviousContinue »
not formerly have thus passed by a mere award (t): which subtilty had its rise from feudal principles; for if this had been permitted, the land might have been aliened collusively without the consent of the superior. But an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitration-bond to refuse compliance (u). (434) For though originally the submission to arbitration used to be by word or in writing, yet both of these being revocable in their nature, it became a common practice for the parties to enter into mutual bonds, with conditions to stand to the award of the arbitrators therein named. (435) And experience having shown the
(1) 1 Roll. Abr. 242 ; Marks v. Marriot, 1 Ld. Raym. 114, 115.
(u) And see the 17 & 18 Vict. c. 125, s. 16.
(434) But few traces of the old English doctrine denying the right of arbitration in matters affecting the title to real estate are to be found in this country. In nearly all of the United States it is a well-settled rule that any dispute whatever, relating to realty, may be the subject of arbitration. Penniman v. Rodman, 54 Mass. (13 Metc.) 382; Philbrick v. Preble, 18 Me. 255 ; Carey v. Wilcox, 6 N. H. 177 ; Akley v. Akley, 16 Vt. 450 ; Blanchard v. Murray, 15 id. 548; Clark v. Burt, 4 Cush. 396; Blair v. Wallace, 21 Cal. 317. In the State of New York the submission to arbitration of any claim to a freehold in real estate is prohibited by statute, and absolutely void. Wiles v. Peck, 26 N. Y. (12 Smith) 42. But this statute is narrowly construed and is held to forbid the submission of claims to an estate in lands only where the controversy is as to the legal title, and not where the equitable title only is in dispute. Olcott v. Wood, 14 N.Y. (4 Kern.) 32.
(435) Form of submission. The form of the submission of a controversy to arbitrators has in many of the United States been made the subject of express legislation. If the statute of a State requires that the submission be in writing, an oral submission will be void. See Jones v. Payne, 41 Ga. 23; McClendon v. Kemp, 18 La. Ann. 162.
So if the statute requires that the instrument be under seal, the seal becomes an indispensable formality. Hamilton v. Hamilton, 27 Ill. 158.
The distinction between a common-law arbitration and an arbitration under the statute should not be overlooked, although in many cases the statutes relating to arbitrations are merely cumulative, and do not affect common-law submissions. Allen v. Chase, 3 Wis. 249 ; Conger v. Dean, 3 Clarke (Iowa), 463 ; Overly v. Overly, 1 Metc. (Ky.) 117; Fink v. Fink, 8 Clarke (Iowa), 313. When such is the case, an oral submission may be be valid as a common-law arbitration, although invalid under the statute. Ib.; Miller v. Goodwine, 29 Ind. 46; Carter v. Scaggs, 38 Mo. 302.
At common law the submission may be oral or in writing, sealed or unsealed. Titus v. Scantling, 4 Blackf. (Ind.) 89 ; Jones v. Boston Mill Corporation, 5 Pick, 148; Clark v. Burt, 4 Cush. 396; Winne v. Elderkin, 1 Chand. (Wis.) 219 ; Byrd v. Odem, 9 Ala. 755.
If the subject of arbitration is such that the parties can contract concerning it only by writing, then an oral submission will be void ; and if only by writing under seal then an oral submission will be void. Valentine v. Valentine, 2 Barb. Ch. 430. In all other cases an oral submission will be valid. Smith v. Douglass, 16 Ill. 34.
A parol submission of questions involving the title to real estate, or of an interest therein, is void under the statute of frauds. Philbrick v. Preble, 18 Me. 255; Walters v. Morgan, 2 Cox's Ch. 369 ; McMullen v. Mayo, 8 Smedes & Marsh. 298.
If the dispute is as to the effect or validity of a sealed instrument the submission must be under seal. Logsdon v. Robert's Ex’rs, 3 Monr. 255.
And where from the subject of arbitration a writing is necessary to pass the right to the thing in demand, or to defeat or destroy the demand, the submission and award must be in writing. Ib.; French v. Neu, 28 N. Y. (1 Tiff.) 147; Smith v. Douglass, 16 Ill. 34 ; Martin v. Chapman, 1 Ala. 278. A written submission to arbitration will supersede one first made verbally. Symonds v. Mayo, 10 Cush. (Mass.) 39 ; Freeman v. Beadle, 2 Root (Conn.), 492.
Revocation. In the absence of any statutory restriction, an greement to submit to arbi. tration is, in general, revocable by either party, at any time before the award is made (Marsh v. Packer, 20 Vt. 198; Davis v. Maxwell, 27 Ga. 368 ; Tobey v. County, 3 Story, 800;
great use of these peaceable and domestic tribunals, especially in matters of account, and other mercantile transactions, which may be difficult of adjust[*8]
ment on a trial at law, the * legislature has by several statutes sanctioned the use of arbitrations as well in controversies depending in
Johnson v. Andre8s, 5 Phila. (Penn.] 8; Leonard v. House, 15 Ga. 473); and an award made after revocation is void. Wood v. Finn, 1 Penn. Law Jour. Rep. 396. A revocation, in order to be effectual, must be express and positive, and coupled with no conditions whatever. Goodwine v. Miller, 32 Ind. 419.
If the submission be in writing, the revocation must be written (Sutton v. Tyrrell, 10 Vt. 91); and if the submission be under seal, so also must be the revocation.
Carpenter, 13 Allen (Mass.), 19; Brown v. Leavitt, 26 Me. 251, A submission under seal cannot be revoked by parol. McFarlane v. Cushman, 21 Wis. 401 ; Mulins v. Arnold, 4 Sneed (Tenn.), 262; Van Antwerp v. Stewart, 8 Johns. 42. The instrument of revocation need not be formal or even grammatical in its language. If a clear intention to revoke can be gath. ered from the entire document, full operation will be given to it. Frets v. Frets, 1 Cow. 335.
If one of the parties to the submission dies pending the arbitration, the occurrence, as a general rule, is a revocation of the arbitrator's authority. Dexter v. Young, 40 N. H. 130; Power v. Power, 7 Watts (Penn.), 205 ; Marseilles v. Kenton's Executors, 17 Penn. St. 238. So, a revocation is effected where an arbitrator dies before award made. Sutton v. Tyrrell, 10 Vt. 91; Potter v. Sterrett, 24 Penn. St. 411.
Revocation may be made through the intervention of an agent, but he must be actually authorized to revoke. Madison Ins. Co. v. Griffin, 3 Ind. 277.
Arbitrator's authority. A submission entered into in pais and not in a lis pendens, or under a statute, constitutes the sole source of the arbitrator's power (Boston Water-Power Co. v. Gray, 6 Metc. [Mass.] 131); and, as a general rule, his power is limited to the determination of precisely the questions which are submitted. Robinson v. Moore, 17 N. H. 479 ; Cook v. Carpenter, 34 Vt. 121 ; Hayes v. Forskoll, 13 Me. 112; Butler v. Mayor, etc., of New York, 7 Hill, 329. He has no power to modify the question submitted. Wyman v. Hammond, 55 Me. 534. Nor can he do general equity. Shearer v. Handy, 22 Pick. (Mass.) 417; Culver v. Ashley, 17 id. 98. But he may dispose of such matters as are necessarily or properly incidental to or comprised within the precise question submitted. Boston Water-Power Co. v. Gray, 6 Metc. (Mass.) 131.
The only party entitled to object to the award, on the ground of the exercise of excessive authority by the arbitrator, is the party prejudiced thereby. Galvin v. Thompson, 13 Me. 367; Lyman v. Arms, 5 Pick. (Mass.) 213.
When the award is to be made. If no time is specified within which an award must be made, it may be made at any time. Small v. Thurlow, 37 Me. 504; Saunders v. Heaton, 12 Ind. 20; Nichols v. Rensselaer Ins. Co., 22 Wend. 125. But if the time has been limited, an award cannot be made after the expiration of such time, without consent of parties. Smith v. Spencer, 1 McCord's Ch. (S. C.) 92; Hall v. Hall, 3 Conn. 308; White v. Puryson, 10 Yerg. (Tenn.) 441; Buntain Curtis, 27 Ill. 374.
How made and published. Unless it is otherwise provided by the parties, all the arbitrators must concur in the award ; and under a submission to three, an award by two is bad. Welty v. Zentmyer, 4 Watts (Penn.), 75 ; Patterson v. Leavitt, 4 Conn. 50 ; Toune v. Jacquith, 6 Mass. 46 ; Smith v. Walden, 26 Ga. 249 ; Payne v. Moore, 2 Bibb (Ky.), 163; Eames v. Eamex, 41 N. H. 177; Jeffersonville R. R. Co. v. Mounts, 7 Ind. 669. But, when several arbitrators are appointed, and one refuses to act, the award of the other arbitrators will be valid (Kile v. Chapin, 9 Ind. 150); and, where, on a submission to three, one dissents from the award of the other two, who execute it without him, the award is valid. Batty v. Button, 13 Johns. 187.
Publication of an award is necessary only where it is expressly stipulated for by the submission. Parsons v. Aldrich, 6 N. H. 264. Execution of an award in duplicate, and delivery of one of the duplicate originals to each party, is a publication (Plummer v. Morrill, 48 Me. 184); and where an award, duly made and sealed up, was left with one of the arbitrators, and the parties appeared before him, and the award was then read to them at their request, it was held sufficient publication to give effect to the award. Rundell v. La Fleur, 6 Allen (Mass.), 480; see Knowlton v. Homer, 30 Me. 553
court, as in those where no action has been brought. By 9 & 10 Will. 3, c. 15, it was enacted, that all merchants and others, desirous of ending any controversy, suit, or quarrel (for which there is no other remedy but by personal
Form and execution of award. Where the submission prescribes no formalities to be observed in the execution of the award, no especial formula is required. Any language expressing an actual decision is sufficient. Ott v. Schræppei, 5 N. Y. (1 Seld.) 483. And in the absence of statutory restrictions, or of stipulations in the submission, and except where the right to be disposed of is, by its own nature, capable of being disposed of only by a sealed instrument, a verbal award is sufficient. M Manus v. M'Culloch, 6 Watts (Penn.), 357; Jones v. Dewey, 17 N. H. 596; Valentine v. Valentine, 2 Barb. Ch. 430 ; Philbrick v. Preble, 18 Me. 255. So, it is never necessary that an award should be under seal, unless it is required by the terms of the submission or by statute (White v. Fox, 29 Conn. 570; Oren v. Boerum, 23 Barb. 187; Crabtree v. Green, 8 Ga. 8); nor need it be attested by subscribing witnesses. Valle v. North Missouri R. R. Co., 37 Mo. 445; Hedrick v. Judy, 23 Ind. 548.
The award must contain the actual decision of the arbitrators, but nothing more is neces. sary. They are not bound to go into particulars, and assign reasons for their award (Blossom v. Van Amringe, 63 N. C. 65; Pattersm v. Baird, 7 Ired. Eq. [N. C.] 255; Lamphire v. Cowan, 39 Vt. 420); nor are they bound to make the evidence a part of their award. Allen v. Miles, 4 Harr. (Del.) 234.
Words written in the margin of an award by the arbitrators, in a distinct sentence, are to be considered as part of the award, and to receive the same construction as if inserted in the. body of it. Platt v. Smith, 14 Johns. 368.
Awards are to be liberally construed, according to the intention collected from the words of the whole (Rixford v. Nye, 20 Vt. 132; Joy v. Simpson, 2 N. H. 179; Mulder v. Cravat, 2 Bay. [S. C.] 370; Jackson v. Ambler, 14 Johns. 96; Spear v. IIooper, 22 Pick. (Mass.] 144; Gonsales v. Deavans, 2 Yeates (Penn.], 538); and, if possible, such construction will be given as to make them effective. Ross v. Watt, 16 Ill. 99 ; Maryland, etc., R. R. Co. v. Porter, 19 Md. 458 ; Archer v. Williamson, 2 Har. & Gill. 62; Skillings v. Coolidge, 14 Mass. 43. Arbitrators are not bound to employ technical words in their report, and their language is to be interpreted according to their obvious meaning. Coxe v. Lundy, 1 N. J. L. (Coxe) 255.
It is held, that if one part of an award is irreconcileable with another, the first part shall prevail, and the latter be rejected. Cox v. Jagger, 2 Cow. 638.
Requisites of award. The award must be final. It must so determine and dispose of the controversies submitted, that they cannot become the basis of future litigation. Barry, 12 Wend. 377. But the parties to the submission only are bound by the award. Chapman v. Champion, 2 Day (Conn.), 101 ; Lamphire v. Coran, 39 Vt. 420; Wyatt v. Benson, 23 Barb. 327; Richardson v. Lanning, 26 N. J. L. (2 Dutch.) 130. As to such parties, a valid award has the force of an adjudication, and effectually concludes them from litigating the same matters anew. Rogers v. Holden, 13 Ill. 293.
An award ought also to be certain (Pettibone v. Perkins, 6 Wis. 616; McCracken v. Clarke, 31 Penn. St. 498; Howard v. Babcock, 21 Ill. 259); but certainty to a common intent only is sufficient. Purdy v. Delavan, 1 Caines, 304, 315. Technical precision and cer. tainty are never necessary in an award. Butler v. Mayor, etc., of New York, 1 Hill, 489. If it is sufficiently certain to uphold a contract on the same subject it is good. Perkins v. Giles, 53 Barb. 342, 349; Akely v. Akely, 16 Vt. 450.
Another requisite of an award is mutuality; that is, an award must not be on one side only. By mutuality nothing more is meant, however, than that the thing awarded to be done should be a final discharge of all future claim by the party in whose favor the award is made, against the others, for the causes submitted, or, in other words, that it shall be final. Cox v. Jagger, 2 Cow. 638; Spofford v. Spofford, 10 N. H. 254; Karthaus v. Ferrer, 1 Pet. 222; Purdy v. Delavan, 1 Caines, 304.
Effect of award. A valid award of arbitrators is conclusive as to all matters submitted to them by the parties (Keaton v. Mulligan, 43 Ga. 308; Girdler v. Carter, 47 N. H. 305; Ennos v. Pratt, 26 Vt. 630; Coleman v. Wade, 6 N. Y. [2 Seld.] 44; Fidler v. Cooper, 19 Wend. 285; Curly v. Dean, 4 Conn. 259); and the prevalent doctrine is, that this is so, whether any particular matter included in the submission was laid before the arbitrators or not. Fidler v. Cooper, 19 Wend. 285; Ott v. Schrappel, 5 N. Y. (1 Seld.) 482; Bunnell v.
VOL. II -2
action or suit in equity), may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of court, and may insert such agreement in their submission, or in the condition of the arbitration-bond ():
(x) And now by the 17 & 18 Vict. c. 125, 8. tion in writing may be made a rule of court, 17, every agreement or submission to arbitra- unless a contrary intention appear therein
Pinto, 4 Conn. 431; Briggs v. Brewster, 23 Vt. 100. But see Inhabitants of N. Yarmouth v. Inhabitants of Cumberland, 6 Greenl. (Me.) 21; Webster v. Lee, 5 Mass. 334; Edwards v. Stevens, 1 Allen (Mass.), 315.
A valid award is a bar to an action upon the matters contained in the submission (Brazil v. Isham, 12 N. Y. [2 Kern.] 9; Preston v. Whitcomb, 11 Vt. 47; Robinson v. Morse, 26 id. 392); but if the award does pot determine the matter submitted, there can, of course, be no bar. Smith v. Holcomb, 99 Mass. 552.
An award is inoperative for the purpose of actually passing title to land, even as between the parties to the submission.* Girdler v. Carter, 47 N. H. 305; Shelton v. Alcox, 11 Conn. 240; Cox v. Jagger, 2 Cow. 638, 650; Jackson v. Gager, 5 id. 383; Sellick v. Addams, 15 Johns. 197; Govdridge v. Dustin, 5 Metc. (Mass.) 363.
A valid award needs no ratification. Sears v. Vincent, 8 Allen (Mass.), 507. It creates a complete obligation, which has its inception from the time when the award is made (Id.); and it cannot be repudiated by the mere act of one of the parties. Hopson v. Doolittle, 13 Conn. 236. But if both parties refuse to be bound by it, it is thereby rendered for ever null and inoperative; and the parties will be remitted to their original rights. Marshall v. Piles, 3 Bush (Ky.), 249; Eastman v. Armstrong, 26 Ill. 216. A valid award, long concurred in, must be held conclusive of the rights of the parties. Jarvis v. Fountain Water Co., 5 Cal. 179 ; Penisten v. Somers, 15 La. Ann. 679.
Where a question of law alone is submitted to arbitration, the award is binding, although the decision is contrary to law. Smith v. Smith, 4 Rand. (Va.) 95.
An award, published by arbitrators on the express condition that neither party was to be bound, is not binding. Sartwell v. Horton, 28 Vt. 370. So it is held that a decision of arbitrators which is expressly made subject to future alterations upon the suggestion of errors by the parties, does not constitute a valid award. McCrary v. Harrison, 36 Ala. 577.
Reriew of arcard. The mode and extent of a judicial review of an award may be provided for by statute or by a reservation in the submission. In the absence of such provision an award cannot be reviewed in the courts on the ground that the arbitrators have erred in judgment as to the law or fact. Jenkins v. Meagher, 46 Miss. 84 ; Perkins v. Giles, 50 N. Y. (5 Sick.) 228; Sabin v. Angel, 44 Vt. 523; Mitchell v. De Schamps, 13 Rich. (S. C.) 9 ; Speer v. Biduell, 44 Penn. St. 23; Moore v. Barnett, 17 Ind. 349 ; Conrad v. Johnson, 20 Ind. 421 ; Bur. roughs v. David, 7 Clarke (Iowa), 154. But when the arbitrators have manifestly fallen into such an error with regard to the facts or law in the cases before them as must have prevented the free and fair exercise of that judgment, the award will be set aside, Sanborn v. Murphy, 50 N. H. 65; White Mountains R. R. v. Béane, 39 id. 107. And it may be stated as a general rule, that one who objects to an award must show an excess of authority, misbehavior, partiality or corruption on the part of the arbitrators. Jenkins v. Meagher, 46 Miss. 84; Sabin v. Angell, 44 Vt. 523; McCullough v. Mitchell, 42 Ga. 495; Bennett v. Russell, 34 Miss. 524; Richardson v. Lanning, 2 Dutch. (N. J.) 130.
Under a charge against arbitrators of fraud and corruption, plain and gross error in their award will be admissible evidence of the charge ; but the error must be very plain and palpable to afford any evidence of corruption. Perkins v. Giles, 50 N. Y. (5 Sick.) 228.
A mistake in law on the part of the arbitrators as to what is submitted to their decision will avoid the award. Walker v. Walker, 1 Wins. (V. C.) No. 1, 259.
An award which is good in part and bad in part may be sustained so far as it is good if the good can be so separated from the bad as to prevent injustice. Day v. Hooper, 51 Me. 178; Rawson v. Hall, 56 id. 142; Whitcher v. Whitcher, 49 N. H. 176 ; 6 Am. Rep. 486, 498; Parmalee v. Allen, 32 Conn. 115. But if there be such connection between that which is good and that which is bad as would work injustice if the latter were stricken out, the whole award must fall. De Groot v. United States, 5 Wall. (U.S.) 419; Whitcher v. Whitcher, 49 N. H. 176; 6 Am. Rep. 486, 499; Commonwealth v. Pejepscut Proprietors, 7 Mass. 399; Parmalee v. Allen, 32 Conn. 115.
which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be conclusive; and, after such a rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award be set aside for corruption or other misbehaviour in the arbitrators or umpire (y), proved on oath to the court, within one term after the award is made. Under this statute, the superior courts interfered to set aside awards when partially or illegally made; or to enforce their execution, when legal, by process of contempt.
By the above statute, however, of 9 & 10 Will. 3, a parol submission could not be made a rule of court, and the remedy by arbitration still remained defective; for a party might at any time before the award was made, or after it was made, but before the agreement was made a rule of court, revoke his submission, a power which was frequently exercised where one of the parties had by some means ascertained that the arbitrator was unfavourably disposed towards him. Besides this, an arbitrator had no power to compel the attendance of a witness, or to administer an oath to him; and therefore if a witness on either side was * unwilling to give evidence, it was not safe to con
[*9] sent to an arbitration, and the evidence being given without the sanction of an oath, the proceeding by arbitration was less satisfactory than that before a jury. It was accordingly deemed expedient yet further to extend and improve the remedy by arbitration, and several provisions contained in the statute 3 & 4 Will. 4, c. 42, were directed to this object. By sect. 39, it was provided that if the submission contained an agreement that it should be made a rule of court, it should not be revocable without leave of the court or a judge. By sect. 40, the court or a judge was empowered to command the attendance and examination of any person, or the production of any document; and sect. 41 enabled the arbitrators or umpire to administer an oath, and has subjected a witness wilfully giving false evidence, in the matter of an arbitration, to the penalties of perjury.
Other material improvements have been made in the law of arbitrations, by the statute 17 & 18 Vict. c. 125, as well by amending the pre-existing law upon this subject (z), as by enabling the court or a judge to compel a reference to arbitration either before or at the time of trial, where the matter in dispute consists, wholly or in part, of items of mere account, which cannot conveniently be tried (a). Under the provisions first alluded to, an action commenced by one of the parties to the reference after all have agreed thereto may be stayed (6), where the parties cannot concur in the appointment of an arbitrator, he may be appointed upon summons by a judge (c); where the reference is to two arbitrators, and one party fails to appoint, the other party may appoint an arbitrator to act alone (d), and the award, unless when otherwise agreed or ordered, is to be made within three months, if the term for making * it be not enlarged (e). The latter series of provisions (f) regulate the procedure, where the reference is compulsory, and inter
[*10] alia empowered the arbitrator to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the court (g).
() As to the grounds of setting aside an (b) S. 11. award, see Russell on Arbitr. 3rd ed. Chaps. (c) S. 12. ix-xi. Re Hopper, 36 L, J., Q. B. 97.
(d) S. 13. (2) Ss. 11-17.
(e) S. 15. (u) Ss. 3 (amended by 21 & 22 Vict. c. 74, s. (f) Ss. 3–10. 5), 6.
(9) S. 5.