Tracy v. Herrick

Eastman, J.

Courts of equity will interfere and set aside an award of arbitrators, whenever such manifest and palpable injustice is done as to show fraud, misconduct or evident mistake on the part of the arbitrators. Rand v. Redington, 13 N. H. Rep. 72 ; 2 Story’s Equity 675.

A court of law, also, will set aside a report in cases where a return is by law made to the court, if corruption, partiality, gross mistake or evident misconduct shall appear. Bassett v. Harkness, 9 N. H. Rep. 165 .

But an award will not be set aside for subtle and technical exceptions; and all matters connected with it, will receive a fair and liberal construction. Spofford v. Spofford, 10 N. H. Rep. 254 .

In Johnson v. Noble, 13 N. H. Rep, 290, Woods, Justice, says that the policy of the law is decidedly in favor of settlements by arbitrators, and their awards should be sustained whenever it can be done consistently with the rules of law.

Such is the law in this State; and the first question *395 which we shall consider is, was there any fraud, corruption, mistake or misconduct on the part of the arbitrators in this ease, which will warrant us in setting aside the award'?'

It is charged in the bill, and contended in the argument, that there never was a hearing by all the arbitrators upon the matters submitted, but that sometimes Hunt and sometimes Pinkerton each by himself heard the parties, and that Brown, the other arbitrator, never acted upon'these matters. This allegation is fully denied by the defendants-in their answers. The evidence in regard to it comes from the arbitrators. The submission, it will be recollected, was made September 5, 1849.

Hunt says that along the 1st of September, 1849, Pinkerton and himself and the parties came together and concluded for Hunt to examine the books and see what matters were in dispute, that they might the more readily decide on the case when they were all together. That along the close of the hearing they were all together, with all the parties, three or four different times, and that nothing in dispute was considered when the arbitrators were not all together. That on the last day of the hearing the arbitrators met in the forenoon, afternoon and evening.

Hunt says further that he spent several days with the parties in looking over their books, accounts and receipts, and in getting them together; that the object was to expedite matters and select out those that were in dispute; and this arrangement was assented to and approved by all the parties. That every thing which was in dispute was set aside for the consideration of all the arbitrators. That Tracy had Carleton and Fields, who had kept his books, to explain them as it became necessary. That at the last hearing all the matters and accounts that had been agreed upon, were laid before all the arbitrators, and it was then agreed by the parties, all being present, that these should be allowed by the arbitrators and included in the award.

He says that the matters particularly in dispute between *396 the parties, were for keeping oxen and their labor, some timber, chains, horse teams and carts, and the personal services of the parties.

Pinkerton states the matter fully as strongly for the defendants as Hunt. He says that the books and vouchers of each party were read over, item by item, in the presence of the parties, to ascertain what was agreed to and what was in dispute. That all the parties agreed to this course, and after it was completed also agreed to the result of the undisputed items. That no matter in dispute was ever considered except when all the arbitrators were together. That there was no unfairness, partiality or irregularity in the award, or in obtaining it, and that everything offered by the parties was fully heard and considered.

Brown says that by arrangement, the books and accounts and vouchers of the parties were chiefly examined by the other arbitrators, and got off in a situation to expedite the business, so that they could look them over more readily. That finally the arbitrators were all together five or six times, and at the end he examined all the accounts and books with the others. That all the parties had books and papers there. That the accounts were all read over and assented to by the parties, except the disputed matters. That the disputed matters were considered when all were present, and decided by all the arbitrators when they were together. That the matters not in dispute were settled and agreed upon by the parties as before stated; and that nothing was included in the award except those matters agreed to by the parties in the presence of all the arbitrators, or settled by all the arbitrators when disputed.

Such is the testimony coming from the arbitrators ; and we think it entirely sustains the answers of the defendants. Nothing, which could properly be denominated a hearing, or which was in any way prejudicial to the interests of either of the parties, took place when all of the arbitrators were not present. The course pursued by Hunt and Pink *397 erton might perhaps be termed an irregularity; but yet it was such an 'irregularity as the parties agreed to, and if objectionable, was fully waived by their subsequent action. An award, though defective on account of irregularity in the meeting of the referees, is made good by a subsequent appearance of the parties. Dorman v. Turnpike Company, 3 Watts’ Rep. 126.

The bill further charges that the agreement to refer, includes an unusual provision, to wit: that the hearing should be without the intervention of attorneys; and that the introduction of this clause, was a fraud upon Tracy. The answers fulty deny the allegation.

In regard to the fact, Pinkerton says that he wrote the agreement to refer, at the request of the parties. That the clause, “ without the intervention of attorneys,” was inserted at the suggestion of the parties themselves. That he does not know which of them first suggested it, and that it was agreed to before he knew anything of the arbitration. That Tracy made no complaint that he had no one to assist him in the hearing, and appeared to understand his rights and to manage them well.

Brown says that he does not know how the provision, il without the intervention of attorneys,” came to be inserted in the submission. That during the hearing Tracy expressed no desire for the aid or assistance of counsel, nor did he, up to the time that the award was made known, express any dissatisfaction whatever as to the manner in which the business had been conducted before the arbitrators. That Tracy took an active part in .the hearing, and asserted and maintained his claims in a like manner with the other parties, and had the appearance of an intelligent business man. Mr. Brown also adds that he knew Tracy was an intelligent business man before.

The testimony of Hunt is to the same purport; and the allegation of the bill in this respect is completely negatived by the proof.

*398 The bill further alleges that after the award was made, an agreement to abide the decision of the arbitrators was signed by the parties; but that the orator did not know what it was when he signed it, but supposed it was something he must sign or subject himself to the penalty of the bond.

With regard to the agreement, the arbitrators testify, in substance, that, they suggested that the agreement should be signed; that it was explained to the parties, and that they all understood it, agreed to it, and signed it voluntarily ; and that nothing like compulsion was used, or deception practised.

The further charge in the bill that the award was altered by the arbitrators after it was signed and published by them, is entirely refuted by the testimony of the arbitrators. They all testify distinctly that nothing of the kind was done.

We have now gone over the principal matters relied upon in the bill as going to show corruption, dishonesty, misconduct or mistake in procuring the award. There are several other allegations, which, if sustained by proof, would tend to show an over-reaching by the defendants.

It is said that Tracy cannot read or write, and could not keep books, and that Herrick agreed to keep the books. Upon this point the evidence shows that Tracy is an illiterate man, but at the same time an active business man; that he had been in the habit of taking contracts on the railroad and for the corporations at Manchester, and that he had books kept for him in this business with the defendants. Herrick denies that he agreed to keep the books as alleged by Tracy, and there is no evidence to sustain the allegation.

It is also alleged that Tracy became so perplexed and disheartened, by reason of the protracted hearings and the difficulties attending the same, that he was quite incapable of understanding his rights or of asserting and defending them. The arbitrators, however, all of them, testify that he appeared to understand his rights and his ease wellthat *399 he was not confused, and made no complaints about the difficulties of the hearing.

Tracy further says that through mistake he failed to lay before the arbitrators his claims to the amount of two hundred dollars. This is denied by the answers, and no evidence is offered to sustain the allegation.

Upon a careful and minute examination of all the evidence tending to show unfairness, fraud or mistake, in the submission, hearing, award, or agreement to abide by the same, the conclusion, we think, is unavoidable, that the orator fails to sustain his bill upon any of these grounds.

But it is said in the argument that the orator does not rely solely upon the want of fairness in the trial before the arbitrators; that aside from that, he has a fatal exception to the award, which is, that it does not follow the submission. The counsel contends that the submission provides that the award shall be indented; tripartite ; and that consequently it should be in the hands of all the parties; but in fact only one award was signed, and it could not therefore be tripartite and in the hands of each of the parties.

The clause in the submission which is relied upon as sustaining this view of the matter, is in the usual form, and provides that the award shall be made and set down in writing, indented under the hands and seals of the arbitrators, and ready to be delivered to the parties, &e. From the evidence, it appears that only one paper, embracing the award, was drawn and signed; but the arbitrators testify that it was the understanding between the parties after the award was made, that it should be left in the hands of one of the arbitrators for the benefit of all the parties.

We cannot, therefore, regard this objection as a substantial one. The award being in the hands of one of the arbitrators, can be produced, if necessary for legal investigation, on the requirement of either .of the parties. It is in a situation to be available to each of them, either in a court of law or equity. And were the objection such as would *400 prevail in a court of law, it has been removed by the agreement of the parties that it should remain in the possession of one of the arbitrators for the benefit of all. Such agreement is a waiver of the strict provision of the submission that the award shall be indented.

It appears also from the evidence that a true copy of the award has been furnished to the orator at his request. Such is the testimony coming from the arbitrator with whom the award was left; and this, it would seem, is sufficient. Where sworn copies of an award are delivered to the parties and received without objection, it will be deemed a waiver of their right to receive the original award. Sellock v. Adams, 15 Johns. Rep. 197.

Had this been a report made by referees under a rule of court, or by submission under the statute, and returned to the common pleas, it could have been recommitted for revision and amendment, if it were necessary. Bassett v. Harkness, 9 N. H. Rep. 165 ; Snyder v. Hoffman, 1 Binn. Rep. 43 ; Thompson v. Warder, 4 Yeates 336 ; Bowers v. Warrel, 1 Browne’s Rep. 170. In chancery, also, a bill to-set aside a report will not be sustained, where the grounds assigned are such as would have been open to the party at Ifiw, by filing exceptions to the report. Hurst v. Hurst, 2 Wash. C. C. Rep. 127 .

This objection, then, nfttst be regarded as technical, and under the facts proved could not prevail in a court of law, much less should it succeed in a court of equity; and the court being of opinion that the award has been fairly and understandingly made, will endeavor to sustain it, so far as may be, against all technical exceptions. Such a course is well sanctioned by authority. Underhill v. Van Cortlandt, 2 Johns. Ch. Rep. 339; Davy v. Farr, 7 Cranch 171 ; Todd v. Barlow, 2 Johns. Ch. Rep. 551 ; Brown v. Bellows, 4 Pick. Rep. 192 ; Herrick v. Blair and Blair, 1 Johns. Ch. Rep. 101 . The same principle is also to be found in the authorities before cited from our own reports. And were a *401 bill filed to enforce the award, the submission being between partners, it would be no sufficient answer that there had been no award according to the submission.

But a further objection is taken to the report. It is contended that the arbitrators have exceeded their authority in undertaking to decide that Herrick should receive from the corporation the money due, and pay it out to the creditors and parties.

Were this objection well founded in fact, it would not vitiate the award. The amounts due to the several parties are all definitely found ; and this provision is simply as to the manner in which the business shall be closed up. An award embracing matters not within the submission, but so made that those actually submitted are decided and can be enforced, is void only so far as it exceeds the submission. Chase v. Strain, 15 N. H. Rep. 535 ; Peters v. Peirce, 8 Mass. Rep. 398 ; Gordon v. Tucker, 6 Greenl. Rep. 247; Walker v. Merrill, 1 Shepl. Rep. 173.

But we do not think that the arbitrators have exceeded their authority. The submission is broad, and was intended to cover the whole ground concerning the contract, and the settlement of the same; and accordingly it provides that the parties shall keep the award “ concerning said contract and settlement.” Should Herrick, upon whom the burden of the settlement rests, in any way act in bad faith in closing the business, this court could interfere and restrain him, so that the full purposes of the award might be carried out.

After a careful examination of the case, we are quite clear that the orator has failed to sustain his bill. It must therefore be dismissed, with costs.