| Mass. | Mar 2, 1917
The plaintiff, as lessee under a written lease of certain portions of a building to be erected by the defendant, entered into possession upon its completion; and soon afterwards controversies arose between the parties as to their respective rights under the lease. There was evidence to show that the matters in dispute were referred to arbitrators, and that the attorney for the plaintiff and the attorney for the defendant were agreed upon by the parties as such arbitrators, and they-have made an award.
It' is the contention of the defendant that the award is binding upon the parties and is a defence to this suit, which is a bill in equity in which the plaintiff seeks, among other things, to restrain the defendant from interfering with the plaintiff’s use of the cellar of the building.
At the close of the evidence the plaintiff asked the judge to rule that “On all the evidence there never was a proper and legal arbitration, prior to the bringing of this bill, by the parties.” This request was refused, and the judge found “that there was a valid oral reference to arbitration of some of the matters recited in the bill as in dispute between the parties, and an award properly made which has been performed by the defendant. As to the other matters I find for the defendant.”
The defendant’s attorney, who, as before stated, was one of the arbitrators, testified that soon after the arbitrators were agreed upon they went to the leased premises and met the parties, who then stated their respective claims; that the plaintiff complained that the defendant was occupying wrongfully the whole of the cellar; that the defendant had not placed sufficient electric light fixtures in his (the plaintiff’s) store; that the defendant had failed to install the required number of toilets in the leased premises; that certain doors were not properly fitted nor provided with keys; that the defendant contended he had made an agreement with the plaintiff by which the defendant was to perform certain extra work that was not required under the lease and the plaintiff was to relinquish his claim to occupy any part' of the cellar; that the defendant also contended that he was not required to install further electric light fixtures in the plaintiff’s store, and that the plaintiff had waived his right to have one of the toilets installed on the second floor.
If we assume, without deciding, that there could be a valid oral reference to arbitration of the matters in dispute as found by the judge, it is manifest that the award as announced to the parties was confined to a determination of their respective rights to the use of the cellar, and did not include all the matters embraced in the submission. The parties were entitled to a decision upon all the disputed questions submitted by them. The arbitrators properly could not ignore any such matter because deemed of small importance, or for any other reason, without announcing their conclusion with reference thereto.
It is well settled that such an award'is invalid. It is no bar to the present suit. Estes v. Mansfield, 6 Allen, 69. Smith v. Holcomb, 99 Mass. 552" court="Mass." date_filed="1868-09-15" href="https://app.midpage.ai/document/smith-v-holcomb-6415412?utm_source=webapp" opinion_id="6415412">99 Mass. 552. Parker v. Clark, 104 Mass. 431" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/parker-v-clark-6416078?utm_source=webapp" opinion_id="6416078">104 Mass. 431. Camp v. Sessions, 105 Mass. 236" court="Mass." date_filed="1870-10-15" href="https://app.midpage.ai/document/camp-v-sessions-6416176?utm_source=webapp" opinion_id="6416176">105 Mass. 236.
As the award did not include all matters submitted, there was not a legal and valid arbitration, and the ruling requested by the plaintiff in substance should have been made.
Exceptions sustained.