70 Md. 405 | Md. | 1889
delivered the opinion of the Court.
The Baltimore and Ohio Railroad Company needing for its right of way certain property owned by the Canton Company of Baltimore, a contract was entered into between the two companies on the twenty-fourth day of November, eighteen hundred and eighty-four, whereby the Canton Company agreed to grant to the railroad company a right of way, particularly described, and whereby it was provided that “if said j>arties hereto cannot agree as to value of said right of way, then the final decision of price to be paid shall be left to some disinterested third party, acceptable to both parties, who shall determine its value, and his decision shall be final and binding upon both parties hereto.” The sum awarded was to bear interest at the rate of five per cent, per annum from December 1st, 1884. “Possession to be given to the Baltimore and Ohio Railroad Company of the land for the right of way above mentioned, as soon as the said company have furnished the Canton Company the plats showing the location of said right of way, but the adjustment of its value shall be determined at any date upon the request of the Canton Company.”
For the purpose of carrying out this contract insofar as it related to the ascertainment of the value of the right of way, an agreement of submission was executed by the two companies on May 26th, 1886; and by its first paragraph W.W. Spence and Robert C. Hall were duly appointed arbitrators. By the fifth paragraph it was provided that “said arbitrators, in ascertaining the sums of money to he paid as aforesaid, shall take into consideration the damages, if any, and also the benefits, if any, to the remaining property of the Canton Company not appropriated as aforesaid, and be governed in the assessment of said damages and benefits by the charters of said companies, and the law of the land applicable to eminent domain. Questions of law and fact in the assignment of said damages and benefits are to he determined by the said arbitrators."
The arbitrators after hearing testimony made their award on the seventh of June, eighteen hundred and eighty-six, fixing the amount to be paid by the railroad company to the Canton Company at one hundred and forty thousand dollars with interest, at the rate of five per cent, per annum from December the first, 1884, pursuant to the contract of November 24th, 1884.
Much of the record is taken up with evidence bearing upon the alleged excessiveness of the award. But there is no charge or pretension that the arbitrators acted fraudulently in making their estimate; and under the broad terms of the submission any mere mistake of-judgment on their part in assessing the damages cannot be reviewed by this Court. Cromwell, et al. vs. Owings, 6 H. & J., 10; Ebert’s Ex’rs vs. Ebert’s Adm’rs, 5 Md., 353. We are consequently not required to consider this branch of the case at all, and we proceed at once to examine the other questions presented.
It is not denied that Mr. Spence was, whilst he acted as an arbitrator, the owner of several hundred shares of the Canton Company's capital stock.
"It is a maxim of every code, in every country, that no man should be judge in his own case. The learned wisdom of enlightened nations and the unlettered ideas of ruder societies, are in full accordance upon this point, and wherever tribunals of justice have existed, all men have agreed that a Judge shall never have the power to decide where he is himself a party. In England it has always been held that, however comprehensive may be the terms by which jurisdiction is conferred upon a Judge, the power to decide his own case
By the original contract, dated November 24th, 1884, it was unequivocally provided that the ascertainment of the amount to be paid to the appellee for the right of way was to he left to a ‘‘disinterested third party.” It is evident, therefore, that there was at that time no idea of submitting the question to a party so directly interested as a stockholder of either company. Many persons were suggested, but none seem to have been satisfactory to both sides. Finally, Mr. Hall was named, and Mr. Brooks agreed to accept him provided some one
It is thus perfectly manifest that up to this point in the transactions neither Mr. Garrett nor Mr. Spencer knew of Mr. Spence’s interest, and it is not pretended that any other officer of the railroad - company was aware thereof. It is true Mr. Spence himself says that more than a year before, and when discussing a
On the ground of sound public policy, and because, as observed by Lord Coke, it is against natural justice that a person should act as a judge in his own case, strong, convincing and indisputable evidence ought to. be produced to show that a party who believed he was submitting his cause to a disinterrested arbitrator, subsequently discovered the arbitrator’s direct interest, and then waived the objection. We were not referred during the argument to any adjudged case distinctly deciding whether, when an award is impeached as this one is, the burden of proof rests upon the party who assails it to show that he continued in ignorance of the arbitrator’s disqualification until after the award had been given ; or whether it is on the opposite party to show that he who attacks the award had knowledge of such disqualification before the award was made. When an award, given under a submission, which expressly provides for the appointment of a disinterested arbitrator, is shown to have been made by one who is directly interested in the result, it would seem quite clear, upon principle, that it must be cancelled and set aside, unless the party who seeks to rescue it from condemnation shows that the person impeaching it had knowledge of that disqualification, before the award was signed, and either waived all objection or acquiesced in that departure from the terms of the contract of submission. This should be the rule as to the burden of proof where the submission distinctly provides for a disinterested arbitrator. Any modification of that
Some authorities support the proposition that, when an act is by the common law or by statute generally unlawful, unless specially authorized, the presumption,
This proposition though not identical with, is analogous to, the question-now being considered. Here the controversy as to the amount to he paid for the right of way was agreed to he submitted for decision to a ££ disinterested third party.” It was, therefore, not lawful for one who was pecuniarily interested in the result to act, unless specially authorized. The question of his authority has been directly raised. The obvious presumption is, that no such authority existed; and that presumption, according to the cases cited, supports the negative allegations of the bill. It irresistibly follows that it is for the party who claims the award to be valid, under this state of facts, to show the circumstance which makes it so — that is, to show that the interested arbitrator was authorized to act.
The cases relied on by the appellee are not, in our opinion, applicable. In actions for deceit the plaintiff is required to prove not only the fraudulent representations, but also that he was misled by them, and that he would not have entered into the contract had they not been made. In other words, he- must show the materiality of such representations, that they were false, and that he has been injured by them. McAleer vs. Horsey, 35 Md., 452; 2 Addison on Torts, sec. 1174. But this is not the case before us. The award is not attacked because the appellant was induced by fraud, misrepresentation or concealment to enter into a contract of submission, but because one of the arbitrators was disqualified, and was incompetent by reason of interest, to make any award whatever.
As acquiescence necessarily presupposes knowledge on the part of the person acquiescing, and as the railroad company has not heen shown to have had any knowledge of Mr. Spence’s interest, our conclusion is that there Avas no acquiescence by the company in Mr. Spence’s acting, notAvithstanding his interest. And there Avas, for the same reason, no waiver of his disqualification.
We are now brought to the only other question in the case and that is the question of laches. It has been insisted that the railroad company has heen guilty of unreasonable delay in filing its bill of complaint, and that consequently it is iioav without remedy. This Court has recently said in Robertson, et al. vs. Mowell, et al., 66 Md., 539, when speaking of laches, that “Courts have wisely abstained from attempting to lay down any general or inflexible rule to govern all cases. As was said in Glenn vs. Hebb, 17 Md., 260, when questions of this kind arise in Courts of equity it is a sound maxim that each case is to be determined according to its OAvn facts.” And Sir Barnes Peacock in The Lindsay Petroleum Co. vs. Hurd, L. R., 5 Privy Council App., 221, observed: “Noav the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. * * * * But in every case, if an argument against relief, Avhich otherAvise Avould be just, is founded on mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the inteiwal, Avhich might affect
Being, for the reasons stated, of opinion that the appellant is entitled to the relief sought in its bill, the decree will be reversed and the cause will be remanded that a decree may he passed in conformity with the views we have expressed and the conclusion we have reached.
Decree reversed, and cause remanded.