Cogswell v. Cameron

136 Mass. 518 | Mass. | 1884

Field, J.

The judge before whom this action was tried, without a jury, was warranted by the facts found by him in also finding that the parties, at the time of signing the papers of January 13 and 15, 1876, “had reasonable cause to believe that the arbitrators had obtained information regarding the case elsewhere than at the hearings, and had examined witnesses of whom they had no knowledge.”

Assuming that the examination by the arbitrators, without the knowledge of the parties, of the two witnesses, Butterworth and King, and the inquiries also made by the arbitrators without the knowledge of the parties, “regarding the usages and customs of trade relative to the matters submitted to them,” would avoid the award, unless such conduct on the part of the arbitrators was either authorized or assented to by the parties, the papers above referred to must be held to establish such assent. It is found that the arbitrators acted with honest purposes and good intentions. It is not found that they intentionally and fraudulently concealed from the parties anything they had done. The parties, then, having reasonable cause to believe “ that the arbitrators had obtained information regarding the case elsewhere than at the hearings, and had examined witnesses of whom they had no knowledge,” without, so far as appears, making any inquiries of the arbitrators as to what testimony they had taken, and what information they had obtained, agreed in writing, before the publication of the award, that they “ consent to the close of the arbitration, and express our consent and approval of the manner, forms, and means which the arbitrators have used to inform themselves, so as to give a decision. And we also agree that we have no objections to make to anything they have done, or any statement or evidence they may have received or taken, whether the same be known or unknown to us,” &c.

These papers constitute a modification of the agreement of submission, which it was competent for the parties to make. The conduct of the arbitrators was not corrupt. The parties have not been deceived by false representations. They have chosen to agree that irregularities on the part of the arbitrators in obtaining information about the case should be waived, without first inquiring specifically what the irregularities were. As the parties could have agreed beforehand that the arbitrators might collect information about the case in any manner they saw fit, they could agree to ratify such a proceeding, if they had not previously authorized it. This they have done under such, circumstances that they cannot avoid the award. Hamilton v. Phoenix Ins. Co. 106 Mass. 395. Eveleth v. Chase, 17 Mass. 458. Foxy. Hazelton, 10 Pick. 275.

No error appears in the rulings of the court.

Exceptions overruled.