Vallé v. North Missouri Railroad
37 Mo. 445
Mo.
1866
Check Treatment
Lovelace, Judge,

delivered the opinion of the court.

This is an action brought by the plaintiff to recover the amount of an award made in his favor against the defendant on account of constructing the railroad over certain lauds claimed by the plaintiff. The court below gave judgment for the plaintiff, tgjreverse which the case comes here by appeal. Several grounds are assigned for error in the court below, but they all resolve themselves into three: 1. The arbitrators were not sworn; 2. Improper evidence was admitted on the part of the plaintiff; and, 3. A mistake of a material fact by the arbitrators in making their award.

I. It is urged that this was a submission under the statute, and that the statutes require the arbitrators ‍​​​​​​​​‌‌‌​​‌‌​​​​​‌​​​​‌​‌‌‌​​‌‌‌​‌‌​‌​​​​‌​‌‌‍to be sworn before they proceed 'to the discharge of their duties. In Bridgman v. Bridgman, 23 Mo. 272, it was held that every submission in writing is a submission under the statute, and that an oath taken by the arbitrators in such cаses is not a voluntary oath, but one required by the statute. The same-doctrine has been held in New York, under а statute nearly identical with our own — Cope v. Gilbert, 4 Denio, 347; Bloomer v. Sherman, 5 Paige, 578. So it would seem that in every submission in writing the arbitrators ought to bе sworn; but it is certainly too late to make that objection in this court, when it was not made in ‍​​​​​​​​‌‌‌​​‌‌​​​​​‌​​​​‌​‌‌‌​​‌‌‌​‌‌​‌​​​​‌​‌‌‍the court below. Perhaps, if this objection had been urged there, the plaintiff could have produced proof that they were sworn, or that it was expressly waived by the parties.

Another objection may be entertainеd in this connection, that the award was not attested by a subscribing witness. This is not made necessary under our statutе, unless the submission provides it shall be made the judgment of a Circuit Court, and enforced according to the provisions of the statute. (R. C. 1855, p. 195, § 6.)

II. The second ground assigned for error is, the admission *451in evidence of copies of the agreement to submit to arbitrators, and the award, without showing the loss or destruction of the original. Had the pleadings made any issue about these papers, it would certainly have been error to have proved them by copies until ‍​​​​​​​​‌‌‌​​‌‌​​​​​‌​​​​‌​‌‌‌​​‌‌‌​‌‌​‌​​​​‌​‌‌‍the absence of the originals was accounted for. But the petition sets out their contents, and the answer not only fails to deny, but expressly admits them as set out. So, inasmuch as no issue was made about them, no harm cоuld result from reading the copies.

III. The third and last point to be noticed is the mistake by the arbitrators of a material fact. Upon this point there seems to be two separate and distinct classes of cases: those where the award is sought to be vacated upon motion, and those where courts of equity are resorted to to set aside the award for fraud or concealment. In the first class of cas.es, it seems that the award will not be set aside or vacated for any mistake of law or fact thаt does not appear upon the face of the award itself. (Wats. Arbitr. 292.) But in the second class of cases, it seems that extrinsic evidence may be resorted to to show that the arbitrators have aсted through prejudice, or that there have been fradulent practices or concealmеnts by the prevailing party. (2 Greenl. Ev. § 78.)

In Knox v. Symmonds, 1 Ves. 860, it is said by the Ld. Chancellor, that if the arbitrators have acted uрon a mistake of a material fact, admitted by themselves to have been made, and to have influenced their judgment, the award ought to be set aside! This point was not before the court, however, in the case above referred to, and nothing is said as to how the mistake may be proven — whether ‍​​​​​​​​‌‌‌​​‌‌​​​​​‌​​​​‌​‌‌‌​​‌‌‌​‌‌​‌​​​​‌​‌‌‍it must apрear upon the face of the award, or whether the arbitrators may come into court and рrove it. We incline however to the opinion that the arbitrators may come into a court of еquity and prove the mistake, but that it ought to be a mistake that does not result from the mere negligence of the losing party, but one that, by due diligence, he would not be able to discover.

In this case, it is complаined that the land in question, or a portion of it, had been dedicated to a public street in the *452city оf St. Louis, by a plat regularly made out and filed and recorded in tlie recorder’s office of St. Louis county. This record and plat imparted notice to everybody, and ‍​​​​​​​​‌‌‌​​‌‌​​​​​‌​​​​‌​‌‌‌​​‌‌‌​‌‌​‌​​​​‌​‌‌‍it is the duty of every person interested tо examine the records for title; and if he fails to do so, that it is his own fault, and he ought not to bo relieved against it.

It is well settled that if the award be obtained by any fraudulent practice or suppression of evidence by the prevailing party, the defendant may plead and prove it in bar of an action to enforce the award. (2 Sto. Eq. § 1456; 2 Greenl. Ev. 78.) And the arbitrators may be examined to prove that no evidence was given on a particular subject, or that certain matters wore or were not examined or аcted on by them, or that there is a mistake in the award. (2 Greenl. Ev. 78.) But none of the authorities that we have been able to find go to the extent, that either courts of equity or courts of law will intervene to relievе those who have failed to relieve themselves. There is no evidence that the, plaintiff had any mоre knowledge of the street than the defendant had. The means of information was the same for both, and both parties might equally avail themselves of it; but, having failed to do so heretofore, it is too late now.

Judgment affirmed.

Judge Wagner concurs ; Judge Holmes not sitting, having been of counsel.