Porter v. Scott

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring. The argument of this case has elicited an amount of labor and research highly creditable to the learned counsel who represent the parties, and we regret that the press of business prevents us from following them in the examination of many of the principles which have been so ably discussed. The plaintiff declared on an arbitration bond; the defendant denies the award. On the trial of the cause the plaintiff introduced an award dated October 1,1852, signed by the arbitrators and one Hussey, who purported to act as umpire. After stating the result of their deliberations, the award concludes with these words: “ Leaving the amount to be allowed for detention of brig and legal expenses to be filled up when they are definitely ascertained." To this is appended a statement of the account between the parties in which the amounts for said items are carried out The defendants contended on their part, that on the first of October 1852, the arbitrators had made their award, and that the plaintiff had served a copy of the same upon the defendant; that said award contained the same recital as above set forth, but that the amounts were not ascertained or carried out, and that the same was done by said Hussey after the award was published. Testimony tending to establish this fact was introduced, and the evidence of Hussey, the umpire, upon this point, was excluded on the ground that he could not be allowed to impeach his own award. This ruling of the Court is assigned as error. It is not necessary, however, to consider it, as there was sufficient evidence to warrant the jury in finding for the defendant, had the Court instructed them properly upon the law. The whole contest was whether the award, as declared on, was complete at the day of its publication, or whether it had been afterwards filled up by Hussey. Under these circumstances the defendant’s counsel asked the Court to charge the jury substantially as follows: That if the award was made and delivered to the respective parties, with the three last items or charges left in blank, that the plaintiff could not recover. That if a different award (which was in evidence) was delivered by the plaintiff to the defendant, which he plaintiff represented as the award between them, then the plaintiff was bound by the award, or if, after the award was signed by the arbitrators and the umpire, and delivered to the plaintiff and defendant, as the award between them, and was afterwards amended or altered without the knowledge or consent of the [316] defendant, by filling up blanks and inserting charges against him, the award so altered was void, and the plaintiff not entitled to recover; all of which was refused. It is well settled that where parties refer all their differences to arbitration, it is the duty of the arbitrators to pass upon the whole subject in controversy, and if it appears upon the face of the award that they have not disposed of the whole matter but have left a part open : or if the terms of the award be such as to render a further inquiry necessary to ascertain a sum of money to be paid, or some act to be done, it is void and will be set aside. It is also settled that when arbitrators have published their award by delivering it to the parties as the award, that it is not the subject of revision or correction by them, and that any alteration without the consent of the parties will vitiate it. Applying these rules to the present case, it is evident that the defendant’s instructions should have been given. The evidence tended to show that several of the items, in the account annexed to the award, were not ascertained at the time of its delivery; that they were not in the copy served on the defendant, and if the service of this copy on that day was a publication of the award, then it was void under the rule I have just stated. It became, then, a matter of importance for the defendant to ascertain the exact point of time at which the items were inserted in the copy held by the plaintiff, on which this suit is brought. A witness had already testified that at the time the copy of the award was delivered to him by the plaintiff to be served on the defendant, the plaintiff told him it was an award, and produced a duplicate eoj>yin which the same items were entered, but not carried out, and that the umpire’s name was not signed to either of them. Afterwards, this same copy is introduced in evidence, signed by him, and the items, before left blank, carried out in his own handwriting. This evidence would have been sufficient to warrant the jury in their discretion in finding, as a fact, that this alteration was made after the award was published, and, if so, then the instruction that the arbitrators were functi officio, and their further acts in the premises were void, should have been given. Judgment reversed, and cause remanded.