29 N.H. 48 | Superior Court of New Hampshire | 1854
The submission was made to Parker, to determine how many of Ward C. Cooley’s flock of sheep were of the flock which John Taylor, 2d, had in his possession on the 30th of June, 1842, and the value of them. And it was agreed by said Cooley that, if upon and by the award of Parker, it should appear and be determined that any of the sheep which Taylor had on said day should be found in Cooley’s flock, Cooley should pay the cost of a writ and service, and also the fees of Parker, for his services in the submission.
The liability of Cooley, then, to pay Parker’s entire bill for his services, depended upon1 the result of his finding in relation to the sheep. But that finding must be a final determination of the controversy, unfavorable to Cooley, and binding upon the parties. The award, however, was not final upon the matter in dispute, but was void, having been made without the requisite preliminary steps stipulated for in the submission, in regard to proofs, and without a hearing of the parties, or notice or opportunity to be heard.
The events, therefore, had not transpired upon which the liability of Cooley depended, to pay Parker’s entire fees,
But how does the case stand upon another view ? Parker rendered services for Goodall and Cooley, in reference to the matters submitted by them to his determination. It appeared that Parker called on several persons named in the submission, on whom he was requested to call, and made inquiries respecting the sheep, and rendered other services contemplated by the submission. He claimed fees for his services, and the plaintiff paid him the amount. If Parker was entitled to receive anything, Goodall and Cooley were jointly bound to pay it, and Goodall having paid the whole, is entitled to recover pay of the defendant. But Parker made an award, which was regarded at the trial as void and insufficient for determining the matter in controversy which was submitted to his determination. Parker omitted to give the parties an opportunity to be heard in the preñases before making his award.
The invalidity of the award is made the ground of objection to a recovery, by the plaintiff, of any part of the fees paid Parker. But we think the error committed by Parker was not of a character wholly to defeat his claim to any and all compensation for his services. He had rendered some services contemplated by the articles of submission, and although he did not render all the services expected of him, and determine the matter submitted to him in a manner binding upon the parties, yet he might, nevertheless, be well entitled to a reasonable compensation for the services rendered. No doubt the services performed were rendered in good faith, and the omission to do all that was contemplated would not necessarily defeat his right to a fair and reasonable compensation for the services actually rendered. Parker was not a lawyer. He did not hold himself out as ■.such, it is presumed, nor was he selected upon that basis. He was selected to determine questions of fact, in reference to a matter with which he was supposed to be acquainted.
We are of the opinion that the ruling of the court upon the facts in the case was not strictly correct, and that the verdict must be set aside and a
New trial granted.
