Roloson v. Carson

Eccleston, J.,

delivered the opinion of this court.

The questions of most importance in the cause are those which relate to the award, we therefore intend directing our attention to them first; although they are presented by the plaintiff’s prayers, numbered from two to six, inclusive, which are to be found in the third and last bill of exceptions.

In England, when an award made under a reference in pais is sued upon, or is used in defence, in a court of law, it cannot be impeached for matters dehors the award. And when the injured party wishes to relieve himself from such an instrument, by proof aliunde, he must file a bill in equity to set it aside. In the suit at law he is confined to errors apparent on the face of the award. Not only is it so in England, but like *219 wise in many of the States of this Union, as will appear from the authorities referred to by the counsel for the appellee under their first point.

Portions of the plaintiff’s evidence intended to impeach the validity of the award should have been rejected in the court below, if objected to as inadmissible, because dehors the award. But what those portions are need not now be inquired into; because, even considering the evidence as in the cause, still we think the prayers of the plaintiff were rightfully refused by the court. And this renders it unnecessary to ascertain to what extent, if any, the English rule in regard to the impeachment of awards, similar to the present, has been altered or modified in Maryland.

The award in controversy is in the following language: “ The undersigned, Samuel Harris and J. Nant, having been appointed arbitrators by Frederick Roloson of the one part, and David Carson, contractor, of the other part, both of the city of Baltimore, to settle a matter of difference between them respecting the building of an addition to said F. Roloson’s warehouse, situate on the west side of N. Paca, between Fayette and Lexington streets, which building or addition to said house, when near being finished and taken possession of by said Roloson, fell down in part, from the fact that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage, showing very plainly that the wall had not been well built. The arbitrators named above, at their second meeting, called in James Curley, and after hearing all the statements of both parties respecting the cause, &c., also examined, under oath, five witnesses called by Mr. Roloson, some of whom had worked upon the building, and others frequently saw the work while in progress; and all of the five witnesses testified that said Carson had paid proper attention to the work from first to last. We therefore, as arbitrators, say, after hearing all the evidence produced in the case, and from our own observation, after a careful examination of the building, that D. Carson is not in any way in fault *220 and not liable for any part of the damage, it being one of those things which human wisdom could not foresee.

Samuel Harris,

John Nant,

James Curley.”

From this we understand the arbitrators as intending to say, in effect, that the wall which fell was to remain, and was supposed by all parties to be good and sufficient to support all the weight for which it was intended; that the external appearance of it indicated no unsoundness or imperfection, but by the fall the internal defectiveness of the ■ structure became manifest, although previously concealed from human observation; that the damage resulted from such concealed defect which caused •the falling of the wall; and as that wall, by agreement, was not to be taken down, but to stand as it was, the arbitrators came to the conclusion that Carson was not in fault and not liable for the damage.

Whether the old wall, by contract, was to stand, and whether ■its external appearance exhibited such a state of soundness as to indicate its entire sufficiency to sustain the weight designed to be placed upon it, disclosing no evidence of any internal defect whatever, the parties supposing it good and sufficient for what it was intended; and whether the failing of the wall was caused by its concealed defect, and not a want of proper care or skill, in the manner of placing the iron columns upon it,swere matters in regard to which the conclusions of the arbitrators were formed from the evidence, in connection with their own personal observation. From the nature and character of the circumstances presented for consideration and decision by the referees, if they committed errors or mistakes in their conclusions upon the facts, they were mere errors of judgment, and not gross mistakes which could defeat the award. It is not every error or mistake which can avail for such a purpose. On the contrary, by a long course of decisions, courts have manifested a strong inclination to sustain the judgments pronounced by arbitrators. Mistakes committed by them in drawing incorrect inferences, or forming erroneous judgments or conclusions, from facts, will not vitiate their *221 awards; but when mistakes are relied upon for that purpose they must be gross and manifest. In Knox vs. Symmonds, 1 Ves., Jr., 369, where the court, from the character of the proceeding, were at liberty to look, not only to the award, but also to the evidence aliunde, Lord Thurlow says: “ To induce the court to interfere there must be something more than an error of judgment, such as corruption in the arbitrators, or gross mistake, either apparent on the face of the award or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened he should have made a different award.” This remark is quoted with approbation in Burchell vs. Marsh, et al., 17 How., 344 . And in that case the Supreme Court also say: “Courts should be careful to avoid a wrong use of the word cmistake,’ and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards.”

From its peculiar applicability to the subject before us we are induced to make a quotation from the opinion of Ch. Justice Shaw, in Boston Water Power Co. vs. Gray, 6 Metcalf, 181, where he says: “The mistake or accident, therefore, must be of some fact which deceived and misled the arbitrators, and not a mistake in drawing conclusions of fact from evidence or observation.” That mistakes which are but errors of judgment will not invalidate awards, may be seen by reference to Cromwell vs. Owings, 6 H. & J., 10 , and Ebert’s Exc’rs vs. Ebert’s Adm’rs, 5 Md. Rep., 353. And in delivering the opinion of the court in Goldsmith vs. Tilly, 1 H. & J., 364 , Ch. J. Chase says: “The court will not unravel the matter and examine into the justice and reasonableness of what is awarded. ’ ’

Without meaning to say whether we should have drawn the conclusions which the referees did, we feel no hesitation in saying, that after looking, not only to the award, but also to the proof in the cause, we see no just reason for supposing they did not believe they were doing what justice demanded of them. And in Burchell vs. Marsh, et al., where the award was open to a full examination, under a bill in equity, fded *222 for the purpose of setting it aside, the court use this language: “ If the award is within the submission and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either of law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.”

The plaintiff’s second prayer, but the first stated in the record, is: “If the jury find from the evidence that the award read in evidence was made, written and subscribed by the arbitrators, at a meeting at which plaintiff did not attend and of which no notice was given to him, the plaintiff, then the said award is no bar to a recovery in this case, unless the juiy are further satisfied from the evidence that the said award, after being notified to the plaintiff, was acquiesced in and assented to by him.”

If the law of this prayer is coiTect, then an award is void, unless ratified after notice of it is given, provided the party opposed to it is not present at, or notified of, the final meeting of the arbitrators, held simply for the purpose of making their decision, writing out and signing their award, although they may have previously heard all the allegations of the parties and examined all the evidence. When jurors retire to their chamber for the purpose of forming a verdict the parties are excluded, so that there may be a free and unbiassed deliberation as to what the verdict ought to be. Why have not arbitrators the same privilege of secret consultation and interchange of views, in regard to their final decision of the matters submitted to them? Impartial justice requires it should beso. If then arbitrators must be allowed the privilege of consultation, in private, for the purpose of making their award, what possible benefit can result from requiring the parties to have notice or knowledge of such an intended meeting? Not considering it necessary the parties should have notice of, or be present at, a meeting of that description, we think the court did right in refusing the prayer.

The third prayer assumes the award to be void in conse *223 quence of the arbitrators having read the defendant’s affidavit without previous notice to the plaintiff, and in his absence, even if the jury believed the affidavit had no irefluence on the minds of the arbitrators. The prayer is in the alternative, “although the jury may believe that the said affidavit had little or no influence on the minds of the arbitrators,” and therefore if the instruction had been given the jury would have been justified in deciding against the award, on account of the affidavit being read, although they believed it produced no effect upon the decision of the referees. That would be allowing an award to be defeated for what is known to have exerted neither beneficial nor injurious influence on the rights of either party. Whilst it might be very proper to set aside an award because the arbitrators had read an ex-parte affidavit of this sort, and a court would not consider such an objection to the award as removed, even were the arbitrators to testify that the affidavit had no influence on their decision, still such a principle does not sanction the propriety of a prayer which assumes that the affidavit had no effect upon the award. Such a proposition would be equivalent to saying the mere reading of such a paper will defeat a,n award, although the parties have agreed that it produced no possible effect.

The proposition stated in the fourth prayer is, that if the jury should find from the evidence the arbitrators were mistaken in the facts, or any of them, recited in the award, as the grounds on which they so awarded, and that without such mistake they would not have so decided, then the award is no bar to the plaintiff’s claim. After a full consideration of . the evidence we see no proof on which such a prayer could be granted: no evidence, in our opinion, legally tending to prove such a gross palpable error or mistake, in any of the facts recited by the arbitrators, as the grounds on which they made their decision, which could defeat the award. If the evidence has any tendency to show mistake, it can amount to nothing more than mistake or error of judgment on the part of the arbitrators, in drawing conclusions or inferences from the evidence and their own observation.

The fifth prayer is: “That the award read in evidence *224 undertakes to acquit and exonerate the defendant from liability on the ground alone, as stated therein, that both parties supposed the stone wall to be good and sufficient, and the same proved defective, which was the cause of the falling of the building, and the award is therefore void for mistake in law, of the arbitrators, appearing on the face of their award, in this, that the facts stated in the award do not, in law, warrant the conclusion, as the arbitrators supposed they did, that the defendant is free from liability to the plaintiff.” In the very commencement of this prayer there-is an error, instead of the award undertaking to acquit and exonerate the defendant from liability, on the ground alone, that both parties supposed the wall good and sufficient, and the same proved defective, which caused the falling of the building, the award contains the important statement, that the wall referred to in the prayer “was to remain.” Not that the arbitrators thought it was to remain, because both parties supposed it good; but after speaking of the new building, they say, it “ fell down, in part, from the fact, that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to support all the weight for which it was intended, gave way or crushed under the iron columns, which caused .the damage.” Here it is first said the wall was to remain, then follows the statement of the further fact that the wall was supposed by all parties, <fcc. .Moreover, when in conclusion the arbitrators speak of their own observation or examination of the building, and of having heard all the evidence produced in the case, and say “that D. Camón is not in fault and not liable for any part of the damage, it being one of those things which human wisdom could not foresee,” it is evident the award does not undertake to exonerate and acquit the defendant from liability, on the ground alone stated in the prayer. Of course it should not have been granted.

By the sixth prayer the court were asked to instruct the jury, “that the paper offered in evidence and pm-porting to be an award is void for the following reasons:

1st. Because there is a mistake of fact apparent on its face.

2nd. Because there is a mistake of law apparent on its face.

*225 3rd. Because of the improper conduct of the arbitrators.

4th. Because it is not in accordance with the submission as proved by Mr. Harris.”

The first reason confines the court to the award itself; and if there is any mistake of fact on its face, we cannot see any which can be considered more than an erroneous judgment or inference. The second reason assumes there is a mistake of law apparent on the face of the award. Whether the court could so instruct the jury must be ascertained by looking to the award itself, without resorting to extrinsic evidence for the purpose of showing a mistake, the assumption being that on its face the award shows it.

We have already stated what we understand to be the meaning of the award in regard to the grounds on which the arbitrators exonerated the defendant from liability, and we think that conclusion upon those grounds was not an error or mistake in law, authorizing the court to instruct the jury that the award is void, because on its face there is an apparent mistake of law. In Ebert’s Exc’rs vs. Ebert’s Adm’rs, it is said: “A more liberal and reasonable interpretation of awards is now adopted by the courts than formerly existed, as to awards. .Every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible, without violating the rales adopted for the construction of instruments.” In support of this reference is made to Caton vs. McTavish, 10 G. & J., 193 . 11 Law Lib., 53, 61, 63.

The third reason relies upon the ground of improper conduct in the arbitrators. The award furnishes no proof of such misconduct, and if any existed it could only have been shown by the evidence. The prayer did not ask the court to inform the jury what facts were sufficient to establish misconduct, leaving the jury to decide whether such facts had been proved; but the court were called upon to say the award was void because of the improper conduct of the arbitration. The granting of such an instruction would have violated the right of the jury to decide questions of fact. In the fourth reason the plaintiff assumed the award to be void, because it rvas not in accord *226 anee with the submission as proved by Mr. Harris. The testimony of this witness was not the only proof in regard to the terms of the submission. Mr. Nant also testified on that subject, and therefore the court were right in refusing to say the award was void because it was not in accordance with the submission as proved by Mr. Harris.

Believing, as we do, the award to have been a good defence against the plaintiff’s claim, and that even if the other decisions of the court below, to which exceptions were taken, are erroneous, the case ought not to be sent back under e, procedendo, it is unnecessary to inquire whether those decisions are correct or not. Indeed we understood the counsel on both sides as agreeing that if the judgment was not reversed upon the plaintiff’s prayers in regard to the award, the other questions presented by the record were of no importance so far as this case is concerned. They desired the court, however, to express an opinion upon the question raised by the second bill of exceptions, in regard to the refusal of the court to suspend the examination of the witnesses until the plaintiff’s counsel had finished writing his exception.

The act of 1834, ch. 233, sec. 11, provides that bills of exceptions must be signed before the verdict is rendered, if the party requires it. Under this act the court has a discretion as to what time the exceptions shall be either prepared or signed, provided they are completed prior to the verdict; and consequently the action of the court in this instance, in regard to directing the cause to be proceeded in, by the examination of witnesses, against the objection of the plaintiff’s counsel, who was writing the exception, we think is not subject to revision on appeal. We will, however, say, that in our opinion, as a general rule, the most appropriate time for, and most likely to avoid delay in, preparing an exception, is, immediately after the decision which is to be excepted to, when the facts are fresh in the recollection of court and counsel, and the witnesses are in attendance, affording an opportunity of re-examination, if a controversy should arise in reference to any portion of the testimony.

Judgment affirmed.