12 Del. 378 | Del. Super. Ct. | 1886
charged the jury:
That the law was favorable to the arbitration and this method of determining legal controversies and disputes out of Court by the mutual consent of the parties to submit them to the arbitration of persons agreed upon between them, and when it is done without a rule of reference out of Court, or any intervention by the Court, as in this case, the arbitrators become the judges and the tribunal of their own selection and creation for this purpose, and for that reason, unless there be good grounds shown for refusing to abide by their decision, both parties are bound in law to comply with it, and when, as in this case, the submission to arbitration is of all matters in difference between the parties, it includes all matters of account, claims, debts, or demands, which they may have against each other, and then in dispute and unsettled between them; and as some question was started on this point in the argument by the council for the defendant, we will say that we know of no reason why it should not include any equitable, as well as legal claims or demand then in dispute and unsettled between the parties, since in its nature it is no more a legal than an equitable tribunal created and established by the act and consent of the parties, and not under the constitution or any statutory provision of the State, and, therefore, we think, if under the terms of the submission in this case, there was any matter in question in the nature of a partnership account between the parties submitted with other claims or demands by them, or either of them, to the consideration and determination of the
Not only by the express terms of the submission the award if made within the time limited in it, was to be final and conclusive; tut the tendency of modern jurisprudence is to give force, conclusiveness and effect to all awards where there is no corruption or misconduct on the part of the arbitrators, and where no deception has been practiced upon them; such has long been .the practice in the Courts of this State. In defence, however, of an action on the award, or for not performing the award, or in defence of an action 0:1 a bond conditioned for the performance of the award, and for not performing it, as in this case, the defendant may avail himself of any material error or defect apparent on the face of the award; such as excess of power by the arbitrators; as by omitting to consider a matter submitted, and it is material to the award : or want of certainty to a common intent; or a plain mistake of law, as for instance, as allowing a claim for freight when the ship had' never broken ground, and the like. In regard to corruption or other misconduct or mistake of the arbitrators in making their award, the common law seems not to have permitted them to be shown in bar of an action at law for non-performance of the award; but the remedy must be pursued in equity. But in this country, in those States where the jurisdiction in equity is not general, and does not afford complete relief in such cases, it has been held that if arbitrators act corruptly, or commit gross errors or mistakes in making tleir award, or take into consideration matter not submitted to them, or omit to consider matters which were submitted, or the award be obtained by any fraudulent practices, or suppression of evidence by the prevailing party, the defendant may plead and prove any of these matters in bar of an action at law to enforce • the award. In practice where no suit is pending arbitrations are
There is however, another matter on which the counsel for the defendant has asked the Court to charge the jury that if the plaintiff in the progress of the trial failed to prove by the testimony of any witness in the case, to the satisfaction of the jury, that the arbitrators before proceeding in the arbitration, were duly sworn, or affirmed, if they had conscientious scruples against taking an oath, as such to try the case, he could not recover in the action. In response to which the Court would say to them that if in the recollection of the jury there was not sufficient testimony before them to satify them of the fact that before proceeding to the hearing of the case the arbitrators had been so duly sworn or affirmed, the plaintiff could not recover, and their verdict should be for the defendant; but if on the contrary, the jury should be satisfied from any testimony in the case they were so sworn or affirmed to try the case, then their verdict should be for the plaintiff. And this brings us to the question presented by the counsel for the plaintiff
The defence to this action is put upon two grounds—First, That no proof was made of any notice to the defendant of the making of the report by the arbitrators; nor that it was made within the time (twenty days) after the hearing, fixed by the articles of submission. Second, That there was no sufficient proof that the arbitrators were sworn, as provided by the articles, before entering upon the discharge of their duties. With respect
In case of such contention, the question is usually settled by the notes of the Judge trying the case; but we have no notes upon the subject, neither is our recollection clear about it. Therefore, the question must necessarily be submitted to your recollection ; and if such recollection be that Mr. Davis said the arbitrators were sworn, there is an end to the controversy, and the second ground of defence to the action fails. Should your minds be satisfied, upon the subject of proof that the arbitrators were sworn, and you find that they were sworn, then your sole duty is to decide upon the amount the plaintiff is entitled to recover from the defendant, for there is no other defence to the action relied on. The plaintiff contends that he has a right to a verdict at your hands for six hundred; while the defendant denies this, insisting that he can recover nothing. If you think he should have a verdict, but the sum of two hundred and two dollars and ninety-four cents found to be due him by the arbitrators. A settlement of .this dispute depends upon the nature of this case. Ordinarily a party in whose favor an award is made (I am not speaking of awards on submissions in Court or by statute), is entitled to this amount of it, and also the costs he has incurred. But this is not a case of such award, but that of one made in pursuance of articles of agreement; and as they contain no provision for the payment of expenses, the decision with re
Verdict for the plaintiff.