While this action was pending, the parties agreed to refer the controversy under a rule of court to an
If, after the reference and the coming in of the report, the case is treated as still governed by the rules of law which would have controlled had it been tried in court, this defense was not open because not pleaded. R. L. c. 173, § 27. Nor is the refusal to allow an amendment pleading- the statute reviewable, as the record fails to show that the denial was not discretionary. Friedenwald Co. v. Warren, 195 Mass. 432, 433.
But the defendant has mistaken the effect of the reference. The plaintiff’s claim was submitted without any limitation to the tribunal which the parties selected, whose decision was final as to all questions of law and fact, unless voluntarily reserved by the arbitrator for revision by the court where the case still remained. Seavey v. Beckler, 132 Mass. 203, 204. It was open to the defendant to urge this defense before him if it was applicable, although not pleaded, as the submission operated as a waiver of all defects or omissions in the pleadings. Forseth v. Shaw, 10 Mass. 253. Ames v. Stevens, 120 Mass. 218.
It is further contended that this question was reserved, because the arbitrator states that his findings are not to be final if upon the facts reported they are manifestly erroneous. But he also says in this connection that he makes his report more full by a discussion which follows of the questions of fact as presented by the defendant. In so doing there is nothing to show that he did not intend to rest the award upon his own judgment of the law, as the amplification appears to have been merely for the purpose of attempting to satisfy the defendant that his view of the evidence was not well founded. Rogers v. Mayer, 151 Mass. 279. Danvers v. Commonwealth, 184 Mass. 502. The award, being consistent with this purpose, cannot be held to have been intended as leaving open questions of law to be decided. Smith v. Boston & Maine Railroad, 16 Gray, 521. The report, moreover, while stating fully the grounds of the award, neither makes any reference to this defense nor refers specifically any questions of law to the court for the purpose of revision. Ellicott v. Coffin, 106 Mass. 365. If the report, there
Judgment affirmed.