129 Mass. 345 | Mass. | 1880
The defendant places no reliance upon the first award, purporting to have been made by Williams, Shaw and McNutt. The arbitrator whom the plaintiff had selected took no part in the hearing, and apparently had no notice to attend. The other arbitrators saw fit to proceed without him, and, without any notice to the plaintiff, and of course without her consent or that of any person authorized to represent her, to substitute in his place a person whom the defendant had summoned to attend for the purpose of making a statement; an expression which we must suppose to mean, for the purpose of testifying as a witness called by the defendant. An award so obtained had no legal validity, and could in no sense be binding on the plaintiff.
Tor the apparent purpose of curing the defects of this proceeding, an attempt was made to procure a new award, to bear the signatures of the three arbitrators originally appointed. To this new proceeding, the plaintiff did not assent, but commenced this suit, without waiting for the result of the new hearing. It is argued on the part of the defendant, that, inasmuch as the plaintiff did not notify the arbitrators themselves of her dissent, there was no formal and sufficient revocation of the submission of the case to them. However that may be, the plaintiff is still at liberty to controvert the validity of the award on any other ground. Corruption, partiality or misconduct on the part of the arbitrators is a sufficient objection to an award, independently of any question as to a formal revocation of their authority. The facts reported show that two of the arbitrators at the second hearing were not impartial men, but had heard the case upon ex parte testimony, and had committed themselves to a decision which was not satisfactory to the plaintiff upon the very question in dispute. And this new hearing was had, not only after those two arbitrators had so committed themselves, and prejudged the case, but without notice to the plaintiff. It
With regard to the testimony of the expert, it appears from the bill of exceptions that he was a carpenter and builder in Boston and vicinity; that he had built in numerous places in the neighborhood of Boston; that from his experience in building, and from the examination of the plans and specifications, he could tell what it would cost to construct such buildings in Boston and its vicinity, and knew the value of the same there; and that the difference*, in building in Norfolk, was only in a matter of freight. We think that this showed such a degree of experience and skill in the subject matter that the court might rightfully receive his judgment as to the value of the buildings destroyed by- fire, as competent evidence for the jury to consider, leaving its weight to be judged of by them. The question as to his qualifications as an expert is largely within the discretion of the presiding judge, and we find no error in his decision. Tucker v. Massachusetts Central Railroad, 118 Mass. 546. Lawrence v. Boston, 119 Mass. 126. Exceptions overruled.
