73 N.J.L. 780 | N.J. | 1906
The opinion of the court was delivered by
The counsel of the plaintiff in error, having before them the light of the above-quoted opinion at the Circuit, fortified by its references to authority, urge in argument and in brief here two subjects deserving our consideration. Their first contention is directed against the validity of the appointment of an umpire. Upon the face of the award in evidence there appears in writing to have been made by the two chosen arbitrators a selection and appointment of a designated person as umpire, precedently to the signing by them of their award. It was made a condition in the submission that the umpire should first be appointed by the two appraisers before they entered upon their own duties, and this the evidence shows they did. Says Kyd on Awards (at p. 87), this “is the fairest way of choosing an umpire.” Nothing has appeared in the case to weaken the legal presumption of validity which the court is bound, to. ascribe to the proceedings, in the absence of evidence to the contrary. The authorities all hold that “every intendment to substantiate the award will be made.” But, assuming, for argument’s sake, the correctness of the suggestion in plaintiff’s brief to the effect that there is nothing in the case to show that the person named by the arbitrators as the umpire possessed the necessary qualifications for the office, or ever accepted it, it seems too manifest to justify discussion that, since the case
The subject presented by the plaintiff’s specific assignment of error raises the important question in controversy. It is that the trial justice.“refused to permit the plaintiff to prove that there was a total loss under said policy of some $300 in the destruction of window glass, which was entirely omitted in the appraisement, and overruled the testimony offered on the part of said plaintiff for that purpose.” The precise point presented here is, admitting the omission from the award of one of the items in dispute between the parties, which was within tire terms of the submission, can such omission be proved at law by parol-extrinsic evidence ?
It should be observed that the plaintiff’s offer does not fall within the exception to the general rule pointed out by Chief Justice Beasley in Ruckman v. Ransom, 6 Vroom 565, 570. -He there adds the great weight of his opinion in expressing both the well-settled general rule and also its one exception, deduced by him from the authorities, as follows: “The general rule, on all sides admitted, is that neither the fraud, misconduct or mistake of the arbitrator can be set up at law in an action on the award, or on the bond of submission, unless such vice or defect appear upon the face of the award or submission. I think, also, it must be considered settled that the generality of this rule is subject to one exception, which is that the award may be contradicted by parol, in order to show that the arbitrators neglected or refused to^ take into consideration a matter submitted to them.” The principal case in this state, out of which this exception took form in the mind of the. Chief Justice, evidently was Harker v. Hough, 2 Halst. 428. In that case it was the refusal of the arbitrators to hear or investigate a certain claim set
But the rule quoted is opposed to the admissibility of such offer. The judgment of the arbitrators as to- conclusions of fact is final, except as above stated. Their award cannot be impeached at law for erroneous judgment upon facts, nor can it be for the omission of items of account which are within the terms of the submission. Even in equity, except in cases of accident or mistake, such decision is final unless corruption or misconduct be imputed -to them.
In Price v. Williams, 1 Ves. Jr. 365, the report of the old case shows that “Mr. Graham — against the award” — ineffectually applied-to Lord Chancellor Hardwicke “for time to consider whether affidavits should be produced which could be made by respectable persons, who were ready to swear that the arbitrators did not look into the evidence of more than five items out of a great member.” The application so refused was entirely analogous to- the plaintiff’s offer in the case at bar. In Dick v. Milligan, 2 Id. 23, 24, it was held that the decision of the arbitrators is final upon matters of fact (no corruption or misconduct being imputed to them). These views bearing upon the omission in question are supported by the clear weight of authority.
Other decisions pertinent will be found in 2 Am. & Eng. Encycl. L. (2d ed.) 776, and it is unnecessary to add them here. The plaintiff also insists that the award did not include the goods destroyed, but we think that, upon its face when read with the submission upon which it is based, it pur
The judgment below should be affirmed.