40 F. 192 | U.S. Circuit Court for the District of Vermont | 1889
This action at law is brought upon an award by arbitrators for damage done to lands of the plaintiff by logs of the defendant floating in Connecticut river. The amount of the damages, and not the
This suit in equity is brought to set aside the award for partiality and misconduct of one of the arbitrators, for fraud of the plaintiff in the action upon the award, and for a mistake of all in making the award for too much. Both causes have been by stipulation of the parties sent to a referee and special master, who has found and reported the facts. The president of the orator chose one arbitrator, and the defendant in the equity case chose another, and, if these two did not agree, they were to choose a third. River farms in that region were exposed to and frequently suffered damage from floating logs. The arbitrator chosen for the orator was a hill farmer, who had at several times so been chosen and acted in that capacity, before. The one chosen by the defendant was a river Iarmer, who had experienced some such damage, but bau made no cbr n for it, and who thought the remedy for such damage was not sufficiently speedy and certain. The president of the orator did not know his situation and views, but one of his employes who assisted him knew that this arbitrator was a river farmer. No objection was made on this account, and any bias he might have from this situation must he considered as waived. Fox v. Hazelton, 10 Pick. 275. As the amount of the damage, and not the question of liability, was wbat was submitted, his views oi what the law of the subject was or ought to be would be immaterial. Ke was a little jealous of the other arbitrator, because of his being chosen by the orator, and of his former acting as such. The master finds that honestly and without conscious purpose he suffered these things to, and they did, a little warp and bias his judgment in favor of the defendant against the orator, and make his estimate of damage higher. The principal of these things appears to have been the attitude of the other arbitrator. This arose upon the occasion, and was not inherent. From lack of independence and strength his judgment appears to have become adjusted to balance the supposed leaning of that other arbitrator.
A substantial part of the damages claimed and allowed was for the breaking of the bank of the river by these logs where it was supposed not to have been broken before. The question whether it had been broken before, or was broken by these logs, appears to have been fairly presented and tried, upon such proofs as were at hand, and such appearances as were visible. The master finds, from clear proof not then available, that the bank had been broken at that place before. So much of the dam'ages as was .allowed for that was for what did not exist, and should not, and would not, have been allowed for, if that fact had then been known. The amount of the damages allowed for this is not ascertainable. The master has found the actual damage not to be above $600. The arbitrators might have awarded more than that without including this supposed break, and they might have awarded less. What amount they would have awarded if that had been excluded is also uncertain. If a new trial could be had, that might bo proper; but there is no mode of obtaining one. To wholly set aside the award for this cause would be harsh, and does not appear to be absolutely necessary. The orator, in asking equity, should be willing to do equity by paying the amount of actual damages, according to the finding of the master in the proceeding which he has invoked. No injustice to the orator is apparent from compelling payment of that. The defendant may prefer to remit the excess to having the award set aside. If so, that opportunity can be afforded in analogy to allowing a remittitur of damages to avoid the granting of a new trial because they are excessive. Moore v. Luckess, 23 Grat.