Jenkins v. Meagher

46 Miss. 84 | Miss. | 1871

SlMRALL, J. :

These litigations between Bridgeford, Jenkins, Bobert-son and Marshall, a building committee on behalf of a masonic lodge, and M. C. Meaglier, a master mechanic and contractor, grew ont of a contract for the erection of a masonic edifice, for lodge and school purposes. The committee complained that Meagher did not complete the building according to plan and specifications, but violated his contract by using bad materials in part of the work, and ceased work without their fault, leaving the house in an unfinished condition. Meagher insists that he was willing to comply with his contract, but was compelled by the committee to desist. Without particularizing the several matters brought into the litigation, it is enough to state that all the subjects embraced in the suits, constituting the differences between the litigants, were, by agreement, referred to arbitration, each executing to the other a bond, engaging to abide by and perform the award; “which shall be final between the parties of all controversies growing out of said contract, or connected with the same, both parties agree to pay such sum forthwith as may be adj udged against either, the award to be made a rule of court.” * * * Such is the stipulation of the submission. The award was filed in court, whereupon Meagher moved that it be accepted and have the effect under the statute of. a decree. Bridgeford and his associates took sundry exceptions, going to its validity, which were overruled, and Meagher’s motion prevailed.

The assignment of errors brings into review the exceptions taken to the award and the decision of the court upon them.

The trial before arbitrators, or an umpire, and their award, is quasi judicial. They are judges selected by the contestants instead of the ordinary judicial tribunal, and the determination as to its conclusiveness stands very much on the footing of the judgment of a court. The submission in this case is very broad, it referred all matters in dispute, both law and fact, and the rights of parties are narrower than in judicial trials, for there is no review or correction of errors of the judgment, either upon the law or facts, nor indeed would the arbitrators be absolutely barred by the strict law of the case. They might proceed altogether on views of what was right and just between the parties without following either the rules that would govern a court of law or equity in the circumstances.

It is not legitimate, therefore, in exceptions to the award, to inquire into the original merits in favor of the one party or the other, or to show that in the evidence the award ought to have been different, or that the law of the case was misconceived or misapplied, or that the decision, in view of all facts and circumstances, was unjust.

The exceptants must plant themselves upon other grounds, as that the arbitrators exceeded their authority, or misbehaved by refusing to hear evidence that was offered, or gave no opportunity to the litigants to be present, in person, and with their witnesses, or that they acted with partiality and corruptly. The declaration in art. 3, Code 1857, p. 371, that the “award shall not be invalidated, except it shall be made to appear that it was procured by corruption or other undue means, or that there was partiality or misbehavior in the arbitrators or umpires, or any of them,” is an iteration of the doctrines which had been well established in the courts. If there be no reservation in the submission, the contestants are taken to agree that every question, both of law and fact, is to be included in the arbitration; collaterally and by evidence aliunde, the award is unimpeachable for mistake of law or fact, unless there be fraud or misbehavior in the arbitrators. Knox v. Symonds, 1 Ves. Jr. 369; Chace v. Westman, 13 East, 358; 2 Story’s Eq. Juris., § 1454; 2 Johns. Ch. 339; ib. 551; Upshaw v. Hargrove, 6 Smedes & Marsh. 292.

■ The exceptions to the award resolve themselves into two or three propositions: 1st. Want of notice to the parties; 2d. Partiality; 3d. That the testimony was not laid before the umpire; 4th. One of the arbitrators did not sign the award. In Upshaw v. Hargrove, supra, there is an intimation of opinion that, where the submission is not under rule of the court, notice is not necessary. In this case the contestants bad notice, and some of tbe exceptants were present before tbe arbitrators, and also before tbe umpire. We give no opinion as to whether notice was necessary or not.

Tbe testimony shows, quite satisfactorily, that neither tbe arbitrators nor tbe umpire declined to bear any testimony that was offered. Tbe arbitrators laid before tbe umpire tbe papers and facts in evidence. If tbe exceptants bad desired tbe umpire to bear tbe witnesses, and not rest upon tbe report of tbe arbitrators, tbey ought at tbe time to bave so notified bim ; tbe difference was not so mucb in tbe statement of tbe evidence itself by tbe respective arbitrators, as in tbeir deductions from it. Tbe award will not be set aside because tbe witnesses were not examined on oatb. Rydeat v. Pye, 1 Bos. & Pul. 91. Or tbat tbe umpire came to bis conclusion on tbe report of tbe arbitrators without examining tbe witnesses (Hall v. Laurence, 4 T. R. 589; Watson on Awards, 170) unless there was a request tbat there should be such examination.

It is more regular for tbe umpire alone to sign tbe award, as it is bis decision which tbe contestants bave obligated themselves to inspect (if tbe arbitrators do not agree); tbe circumstance tbat one of tbe arbitrators signed with him, does not tbe less make it bis award or vitiate it.

Tbe testimony fails to indicate corruption or partiality on tbe part of tbe arbitrator or umpire. There may have’been some indiscretions, but nothing of tbe gravity to taint tbeir conduct, or tbat of either of them, with corruption.

Judgment affirmed.