120 Mass. 5 | Mass. | 1876
Under the submission by agreement of parties and rule of court, the arbitrator was bound to decide all the facts, and could refer nothing but questions of law to the court. Bigelow v. Newell, 10 Pick. 348. Ellicott v. Coffin, 106 Mass. 365. The question whether the driver was the servant of the defendant, in starting and driving the wagon with the load put upon it by Rust and Marshall, was a material question of fact, which has not been decided by the arbitrator. Kimball v. Cushman, 103 Mass. 194. Brady v. Giles, 1 Mood. & Rob. 494. His calling this question of fact a question of law did not make it such, nor enlarge the authority of the court over his award. The rule of reference might indeed have been discharged, or modified by agreement of the parties, sanctioned by the court,, so as to submit any question of fact to its decision. But any such modification must appear of record. Hicks v. McDonnell 99 Mass. 459. Upon the award as it stood under the original rule of reference, no inference of fact appears to have been, or could be, decided by the Superior Court. As a material question of fact has not been determined, the judgment must be set aside, and the case stand for further proceedings in the court below, by a recommitment to the arbitrator or otherwise.
Judgment set aside.