Hoagland v. Veghte
23 N.J.L. 92
N.J.
1851
Check Treatment
Carpenter, J.,

delivered the opinion of the court.

Two questions are involved in this case: first, whether the award, or any part of it, is bad on its face; and next, whether parol testimony of what took place at the last arbitration can be admitted in order to show that the arbitrators erred in considering matters not within the scope of the submission. If an excess of power appears on the face of the award, undoubtedly it will be void, either wholly or in part, according as the bad may be separable from the good or otherwise. If inseparable the whole must fall together, though every intendment will be made in favor of an award, and the bad will be separated from the good, if possible. If, therefore, in this case any excess of jurisdiction appears on the face of the award, it will at least be so far void.

*96Under the agreement between the parties, arbitrators were successively chosen as damages were supposed to have been sustained and their successive awards made. It is on the last award that this action was brought. Parol testimony was received to -show what had' been considered, and for what damages had been given in the prior arbitraments, the arbitrators being examined for this purpose. So far as those awards were ambiguous or silent, this evidence seems to have been competent and proper. While an award, like a judgment unrevoked and appealed from, is binding and conclusive on the parties, yet in like manuer parol evidence is sometimes necessary to show the extent of its application and how far it concludes. Ravee v. Farmer, 4 T. R. 146; Seddon v. Tutop, 6 Ib. 608; 1 Grnl. Ev. § 532; Russel on Arbitration 445, 458 (Law Lib. ed. 1849).

It appears, on the face of the award on which this action was brought, that the arbitrators allowed $15.88 in relation to a matter adjudicated upon in a prior arbitrament. This sum, so allowed, they have distinguished from the damages awarded generally under the submission. Those arbitrators had no authority thus to review the prior award, and, because they supposed the first arbitrators had allowed too small a sum for the value of the land drowned, to award an additional sum. This part of the award then was bad, but, as it was separable, the award was not altogether void. The Common Pleas properly rejected so much of the award, and so far, we .think, there is no error in the judgment of that court.

But it was further offered in the court below to show that the arbitrators in the last award had considered and allowed damages in relation to another matter, for which damages had also been given in the prior award. This not appearing on the face of the last award, as in the former instance, one of the arbitrators was sworn, and his testimony received to prove the allegation, thus undertaking to contradict, or at least explain the award on which the action was brought in a matter not ambiguous on its face, by proof extrinsic thereof. In our judgment, this evidence, so offered, was improperly admitted. Under the common law, as understood in this state, in order *97to raise this defence, the objection must appear on the face of the award. It is not generally admissible in a suit at law on the award or on the arbitration bond to show by parol an excess of jurisdiction, whatever may be the case on motions to set aside an award, when made a rule of court under the statute. Such was admitted to be the rule in England in Bean v. Farnum (6 Pick. 269, 273,) where it was said that the remedy in such case, or of other gross error or mistake not appearing on the face of the award, must be by appealing to the summary jurisdiction of the court to set aside the award or by bill in equity. The rule was departed from in that state because the subject could not be reached by any equity power. It was so expressly held in the Supreme Court of New York, on the strength of the English authorities following a previous course of decision in their own state, in Butler v. The Mayor of New York, 1 Hill 489. This decision was indeed reversed in the Court of Errors of that state, and the rule was there thus arbitrarily changed, but upon no principle or authority deduced from the common law, as will be obvious from an examination of the opinions delivered on the review. (See 7 Hill 329). "VVe are bound to receive the law as understood and established in our own state, and we see no reason or authority which would justify us in following such new course of adjudication. It was said, in a subsequent case in New York, when the court felt bound to follow the rule, as laid down by the higher court, that it was at least doubtful whether the new doctrine, thus introduced, would exert a wholesome influence. Per Bronson, C. J., 4 Denio 199.

The cases of Hough v. Harker, 2 Halst. 428, and Mitchel v. Stavely, 16 Fast 58, might at first sight appear to conflict with the doctrine just propounded, but may be distinguished. In both these cases the arbitrators refused to consider a part of the matters distinctly submitted to them. Suit being brought on the arbitration bond, this defence was raised by plea and sustained on demurrer, the award being held void, because the arbitrators had not taken upon themselves the burthen of the arbitrament conformably to the submission. The evidence to support such defence is not to contradict the award or to show fraud *98or misconduct or other error in regard to any thing actually considered by the arbitrators : it is received simply in order to show that after notice matters in controversy the arbitrators neglected or refused to take such matters into consideration.*

The parol testimony was so far improperly admitted, but as the court gave judgment for so much of the award as was-good on its face, it seems to be no ground for reversal. The Common Pleas, on the whole case, arrived at a proper conclusion, and we think the judgment ought to be affirmed.

Judgment affirmed.

Cited in Rogers v. Tatum, 1 Dutch. 282; Hoagland v. Veghte, 1 Vr. 518; Ruckman v. Ransom, 6 Vr. 571; Veghte v. Hoagland, 3 Stock. 45.

Notes

Query, whether this defence may not be raised under the plea of no award. See Fisher v. Pimbley, 11 East 193 ; Gisborne v. Hart, 5 M. & W. 50; Dresser v. Stansfield, 14; Ib. 822; Watson on Awards 361. In Dresser v. Stansfield it was held that a plea, that the arbitrator had not awarded on all the issues in a cause referred to him was bad on special demurrer, unless with a traverse that there was no award of and concerning the premises.