| N.H. | Jun 5, 1879
The referees did not exceed their authority. The award is warranted by the submission, and does not appear to be based on any error of law or fact. For the protection of the defendant, the submission provided that the referees should determine the restrictions under which the plaintiff should take down and rebuild the partition wall, which was one side of the defendant's building. The referees imposed several restrictions, one of which was, that the sum to be paid by either party to the other should be determined by the referees at the conclusion of the work. In putting under the control and regulation of the referees a future work likely to be injurious to the defendant, the submission contemplated future damage likely to be caused by that work, and a claim of compensation for such damage at the completion of the work. The parties would naturally understand that such a claim would be adjusted, not by a lawsuit, but by the arbitration by which they agreed to avoid lawsuits about that work. And if a stipulation to that effect was not directly established by the legal construction of the bonds, the bonds authorized the imposition of such a condition by the restrictive power committed to the referees. And if, by an incomplete use of that power, the referees could turn such a claim, or any part of it, over to a lawsuit, it was not their legal duty to thwart the parties in that way. This part of the case is settled by the decision in the suit at law between the same parties.
At the time of the submission the plaintiff did not know that the defendant intended to make such a claim. It was not then known that she would so take down the wall and build another as to do him any harm. But if she understood that the submission empowered her to do the work so as to inflict upon him unlimited damage without due compensation, or excluded such compensation from the award, she entertained an unreasonable and erroneous *112 view of the written effort made by her and by him to secure the execution of the work without injustice and without litigation.
So far as the question of bias, partiality, and misconduct of the referees is a question of fact, it was tried at the trial term, and decided adversely to the plaintiff: and so far as it is a question of law, the plaintiff's allegation is not sustained. Neither by evidence of excessive damages given or other injustice done in the award, nor by any evidence, did the plaintiff prove this part of her complaint. Upon the order of the trial term dismissing the bill, the case is to be regarded in the law term as one in which, as a matter of fact, justice was done by referees, before whom the parties had a fair trial. An honest and intelligible award, embracing the matters submitted and nothing else, is generally sustained by the law, notwithstanding errors and informalities consistent with the fairness of the trial. Beattie v. Hilliard,
In the absence and without the knowledge of the parties, the referees made, and caused to be made, on the ground, such measurements as they thought might give light on the disputed line and the weight of the evidence. In this there was no irregularity or impropriety. The referees' authority to determine the line and the whole case included authority to make measurements in the absence as well as in the presence of the parties, for the purpose of finding the line, marking it upon the ground, and testing the evidence, and to decide whether measurements made in the absence of the parties should be made known to them as a reason for a further hearing.
When certain measurements were made in the absence of the parties, the surveyor made material statements to the referees in regard to the true location of the line. It is not found that what the surveyor said was untrue, or caused or had any tendency to cause any error in the award. At a subsequent hearing the surveyor testified as to the measurements made by him under the direction of the referees, and the plaintiff had an opportunity to examine him, and to show by any evidence any error in his measurements, or in the statements made by him to the referees.
In the consultation of the referees, after the final hearing, one of them told the others what he knew about the line. This it was perfectly proper for him to do. A referee is frequently chosen by the parties because he is supposed to have some knowledge of the matter in controversy. One object of voluntary, common-law arbitration is a method of trial more liberal than that of court and jury. How much more liberal it shall be, is a question largely left to the discretion of the judges selected by the parties. When the trial *113 is fair in fact, the law does not overturn the award on the ground that a referee acted upon his own knowledge of a material fact, or that his associates acted upon the same knowledge communicated to them by him. By universal practice and understanding in this state, the law of this point is as well settled as the rule that the referees are the judges of the admissibility and weight of evidence.
The plaintiff desires, by an amendment of the reserved case, to bring before us evidence that would raise no question of law. The amendment should not be made. The parties did not intend their arbitration should be defeated by an appeal from the referees to a jury, or to a court, on any question of law or fact submitted to the referees. And on the material questions of fact raised by evidence in this suit, there is no appeal from the trial term to the law term.
Exceptions overruled.
STANLEY, J., did not sit: the others concurred.