Gunn v. Bowers

Opinion, Mr. Justice Mitchell: The parties referred this cause to an arbitrator under the act of 1836, and after hearing, he reported in favor of plaintiff for $287.77, with interest from October 1, 1886. To this report the defendant filed exceptions, which after argument were dismissed, and judgment entered on the award for plaintiff. Four days later, but still in the same term, the court on motion reinstated the exceptions, ordered a re-argument, and upon the re-argument sustained one of them, and entered judgment for the defendant for $129.91. To this judgment the present writ of error was taken, and was lodged in the court below on November 26,1888. Afterwards, on December 7th, the court made the following order: “And now December 7, 1888, it appearing that the decree entered on the 13th day of October, A. n. 1888, after argument of the exceptions filed to the award oí the referee, ordering judgment to be entered in favor of defendant and against plaintiff in the sum of $129.91, was improvidently entered, as to the form of the finding of the court, it is now ordered that said judgment be stricken off; and it is further ordered and decreed, that the second exception of defendant to said award is sustained, it plainly appearing, to the [556] court that defendant has overpaid said plaintiff to the amount of $112.96, and the said award is directed to be returned to said William Grew, arbitrator, for amendment and correction in accordance herewith.” Both the judgment for defendant, and the subsequent order referring the case back to the arbitrator with orders how to find, are assigned for error. As to the first, there is no difficulty. The court having inadvertently made an erroneous order, had a right to correct it, notwithstanding the lodgment of the writ of error with its prothonotary. The return day of the writ of error had not yet arrived, and whether the record was in fact made up and transmitted to this court, or as yet only constructively removed, it was still within the reach of the court for the correction of clerical or manifest errors. Even had the return day passed and the record been in the actual custody of this court, it is doubtful if the plaintiff in error could be heard to complain of the court below for doing, even thus irregularly, what he was himself here asking us to do. So far therefore as concerns the first assignment of error, the entry of the judgment for defendant, it has been cured, and needs no further remedy. But the plaintiff complains that in curing one error, thus inadvertently made, the court has fallen into another equally injurious to him, by directing the arbitrator to find for the defendant in accordance with its opinion filed. This assignment must be sustained. By the agreement of reference, the parties submitted their cause to the judgment not of the court but of the arbitrator, and by the express language of the act of 1836 the finding of the arbitrator is made equivalent to the verdict of a jury. By section third of the act the submission may be confined to matters of fact, reserving matters of law for the decision of the court, and in such case the finding has only the attributes of a special verdict. But a general submission under the other sections of the act, includes both law and fact, and a finding under such a submission is equivalent to a general verdict. By section four the award is subject to exception “ for either, of the following causes, and for no other,” viz.: (1) misbehavior of the arbitrator; (2) plain mistake of fact or law; or (3) corruption or undue means in procuring it. The [557] second of these is the only one with which we are concerned now, and as to it the uniform construction from Williams v. Craig, 1 Dall. 338, down, has been that it gives the court no power to make a new or different award, based on a different view of the law or the facts, thus substituting the judgment of the court for that of the chosen arbitrator, but only suclx power as the court has over a verdict, to sustaiix it or set it aside iis a whole. In Williams v. Craig, one of the exceptions was to the allowance of interest on an unsettled account, and in reference to it MoKeax, C. J., said: “ The referees have mistaken a clear point of law, which would alone be sufficient for setting aside this report.” Nothing c.ould have been easier than to correct the award by striking out the interest, but no such suggestion was made, nor do court or counsel appear to have thouglxt any other course possible than to set aside the whole award. Nor have I found any subsequent case in which the award has been either amended or referred back to the arbitrator for correction upon any matter of substaixce. In Shaw v. Pearce, 4 Binn. 485, the award was held bad because the referees had delegated part of their work to accountants whom they had found it necessary to employ, and counsel moved to refer it back, upon the general grounds of equity, to save the entire loss and expense of so many meetings of the referees, and so much labor of the accountants. But the court held that this could not be done except by consent. “Where there is mere informality in the report,” says Tjlghmax, C. J., “ the court may send it back without consent. But where the award is set aside in consequence of a material error on the part of the referees, consent- of both parties is essential to induce the court to grant such a motion.” And see Etter v. Edwards, 4 W. 65. These cases arose before the passage of the act of 1836, the seventh section of which expressly permits the court, if it shall appear that the referees have made a mistake, to refer the cause back to them, “ for such further or other proceedings therein as shall be expedient.” But this section has been held to be declaratory only" of what was the law previously", uixder the act of 1705, aixd the mistakes either of law or fact, for which the award may be referred back, are such plain mistakes as will be obvious to the referees themselves the mo [558] ment they are pointed out, and do not include a review of the case on its merits, or a different estimate of the weight of the evidence. The decision is still to remain the decision of the arbitrators, and the new consideration is not to be a reconsideration of any substantial matter upon which they have already closed their judgments. “ Having then a proper respect for the'principles of the common law, it would seem that the mistake spoken of in the clause of the section under consideration, ought to be construed to mean a plain mistake, such as becomes at once perfectly obvious to every one, immediately upon its being pointed out or mentioned, so that there can be no diversity of opinion in regard to it; as for instance, a mistake in adding up the items of an account, or placing inadvertently a debit on the credit or a credit on the debit side of the account,.....or in short, any mistake of a mere clerical nature : ” Coleman v. Lukens, 3 W. & S. 43. “ That was not a case of plain mistake, but an award contrary to the terms of the submission. To send it back was the equivalent of sending back the entire subject matter of controversy to be retried. This was not authorized by the seventh section of the act of June 16,1836 : ” Thompson, C. J., in Kidd v. Emmett, 72 Pa. 151. It thus appears settled that the court cannot alter the award itself, nor direct the arbitrator to alter it, even under the act of 1836, section 7, except as to clerical, or manifest and unquestionable mistake. It may be a subject of regret that the court should not have the same power of revision that it has over the report of a master in equity, for much of the work of the arbitrator may be well and rightly done, and with correction would save the time, expense and vexation of another trial; but so we find the law written, and so we must administer it. As the action of the court, in the present case, inadvertently transgressed the limits thus set, it was erroneous. Judgment reversed, and record remitted for further proceedings.