Sperry v. Ricker

Metcalf, J. 1. The award, as first made by the arbitrators was returned within the time limited by the submission. It was not accepted by the court, but was recommitted. And the Rev. Sts. c. 114, § 6, and Gen. Sts. c. 147, § 5, contain no provision as to the time of the return of a second award. See Whitney v. Cook, 5 Mass. 142. 2. The court are of opinion that it sufficiently appears from the award, that the three arbitrators were present when the [19] parties were heard, and when the award was agreed upon by the two who signed it, and that it is immaterial whether the arbitrator who did not sign it was or was not present when it was signed by the others. Although it is not expressly stated, in the award, that the arbitrator who did not sign it declined so to do, or that he dissented from the other two, yet these facts seem to the court to be necessarily implied from his omission to sign it. But whether this be so or not, the award shows that it was made by “ the greater part ” of the arbitrators, according to the authority expressly given to them by the submission, and under the conditions implied by law, namely, that all the arbitrators shall hear the parties and consult together. Short v. Pratt, 6 Mass. 496. Carpenter v. Wood, 1 Met. 411. It is not necessary that an arbitrator should formally dissent from his associates, in order to render their award valid; it is sufficient if he does not concur with them. If he declines to express any opinion, the others may dispose of the case. 3, 4. The objection to the jurisdiction of the arbitrators and of the court is answered by the agreement of the parties that the award should be returned to the court of common pleas forth e county of Suffolk, for final judgment. Though both of the parties lived in Middlesex, yet if one of them had, brought a transitory action against the other in Suffolk, the court in that county would have had jurisdiction, and it would have been only by plea or motion in abatement that the party sued could have taken advantage of the provision in Rev. Sts. c. 90, § 14, and Gen. Sts. c. 123, § 1, that transitory actions shall be brought in the county where one of the parties lives. Cleveland v. Welsh, 4 Mass. 591. Hastings v. Inhabitants of Bolton, 1 Allen, 529. 5, 6. We think the award is not objectionable for uncertainty whether it decides the matters submitted, or for not showing in terms that it decides all those matters. It is the legal presumption, unless the contrary appears, that arbitrators pursue the submission and decide only the matters therein contained, and also that they decide all matters submitted to them. And it is incumbent on a party who seeks to impeach an award, on the ground [20] that the arbitrator? have not so done, to show that they have not Such is the law, when an award is presented to the court for acceptance, and when an action is brought on an award or on an agreement to perform an award. Parsons v. Aldrich, 6 N. H. 264. Tallman v. Tallman, 5 Cush. 333, and cases there cited. Strong v. Strong, 9 Cush. 565. Best on Presumptions, 80. Such, a fortiori, must be the law, on a writ of error brought to reverse a judgment rendered on an award after objections to its acceptance have been, as in this case, overruled by the court to which it was returned. Judgment affirmed.