30 Me. 552 | Me. | 1849
— On the disagreement of the two referees named in the submission, they were authorized to make selection of a third, and the three were to finally determine the suit. The evidence of both parties shows that the two appointed by the submission failed to make a decision, by reason of a disagreement, and they made choice of John Grant, Jr., as the third referee or umpire, but they made no writing as evidence of the selection. Grant entered upon his duties as a referee with the other two, both parties having knowledge thereof and interposing no objection to the choice made. The defendant acknowledged his authority-to act under that appointment, by submitting questions to the three arbitrators afterwards. The appointment of Grant was acquiesced in by the defendant, and it is too late to object to the sufficiency or the competency of the evidence of his qualification to act. Norton v. Savage, 1 Fairf. 455.
It is insisted, that this suit cannot be maintained, because there was no such award as was required by the submission, it having been signed only by two of the three referees, and also because there was no hearing of the evidence from witnesses before the three. An agreement to submit a controversy to arbitration, must have effect according to the intention o*f the parties, exhibited in the submission, like any other contract. When it is agreed, that the decision of the arbitrators named shall be conclusive, it must be understood that unanimity was; intended. Hut the parties may adopt their own form of contract, unless where they design to conform to the requirements, of the statute, and to obtain an execution directly upon the-award, by a submission before a justice of the peace. And if they intend that a concurrence in opinion of all the referees is not necessary to constitute a binding award, and that intention is apparent upon the submission, the decision of a majority is valid. This intention may be expressed in direct terms ; but if it is not so expressed, but is clearly inferable, from the whole instrument, it is equally obligatory. It was agreed in this case to refer the suit between the parties and its cause, t© Snowman and Curtis, “ to hear and finally determine the same
The submission provided, that the two referees chosen by the parties should “ hear” and determine, &c. and if the selection of a third became necessary, the three “ are finally to determine,” &c. The contract does not make it the imperative duty of the three to hear the evidence, and it does not in express terms, dispense with the hearing. In this respect it is not perceived that there is any more or less occasion for a person brought in as a third referee to hear the whole case, as it was before presented, than if he were selected an umpire, with the peculiar duties appertaining to that appointment. In the case of the latter, it was held to be no good cause to set aside the award, that the umpire took the evidence from the arbitrators, instead of hearing the witnesses, there being no application, that the witnesses should be re-examined. Hall v. Lawrence, 4 T. R. 589. The case of Falcony v. Montgomery, 4 Dal. 232, is supposed to be at variance with the principle of that of Hall v. Lawrence. When the umpire or third referee is desirous of hearing the witnesses, it would per
There is evidence, which is not contradicted, that there was a full hearing before the two referees first selected; and that the parties said they had no further testimony to offer. After the choice of the third, he possessed himself of the facts, which had been before introduced from the report of the evidence of the other two referees, they not differing in regard to the facts stated by witnesses. It appears that the defendant was fully apprised of this course, and made no objection thereto, but after an adjournment of the meeting of the three, and at a subsequent meeting, the defendant expressed a desire to introduce further testimony, from a witness, whom he named. And two of the referees testified, that on inquiry why he had not introduced that witness at the trial, he replied, he supposed he would swear for the plaintiff, as he had pledged himself to do so, but afterwards he went and settled a difficulty between the witness and himself, and he expected he would swear for him. By the testimony of the other referee, called
The case shows nothing indicative of a prejudice in the minds of the. referees, who sign the award, against the defendant, or of an unwillingness to give him every reasonable means to make his defence.
It is objected, that the award was not published. In Musselbrook v. Dunkin, 9 Bing. 605, the Court say, that the word “published,”- when applied to an award of arbitrators, “is satisfied by the award’s having been made, and notice having been given to the parties, that it is within their reach on payment of just and reasonable expenses.” And in McArthur v. Campbell, 5 Barn. & Adol. 518, it was held, that an award is published, when the arbitrator gives the parties notice that it may be had on the payment of his charges, whether they be reasonable or not.
In June, 1846, the award was made, and delivered to the
According to the agreement, of the parties, the defendant is to be defaulted.
Damages, the amount of the award, and interest from the time of the demand of its payment.