Burnell v. Everson

The opinion of the court was delivered by Pierpoint, C. J. This action is brought to recover the one half of the amount of the arbitrators’ fees that were awarded to be paid by the plaintiff by a board of arbitrators appointed by [451] the plaintiff and defendant to settle certain matters of difference between them. It appears from the case that in the submission nothing was said as to the costs of the arbitration. The arbitrators awarded that the plaintiff, Burnell, should pay their fees, amounting to the sum of $60. Afterwards they sued Burnell for their fees and obtained a judgment therefor. Burnell paid the judgment, and brought this suit, and the question now is, whether he can recover the one half of this defendant. It is claimed on the part of the plaintiff that the arbitrators, in awarding that he should pay their fees, exceeded their authority, and that their award in that respect is void; and, in support of this claim, the case of Morrison v. Buchanan, 32 Vt. 289, is mainly relied upon. In that case the suit was brought upon the submission bond, and the principal point litigated was, whether the arbitrators had in fact awarded that Buchanan should pay the arbitrators’ fees. They awarded that he should pay the costs of the arbitration ; they taxed Morrison’s cost and fixed the precise amount that Buchanan should pay, but did not include in that sum their fees. The court held that there was no award that Buchanan should pay the arbitrators’ fees; and, of course, his refusal to pay them was not a breach of the submission bond, and there could be no recovery against him. In disposing of the case, the late Chief Justice Eedfield discusses at considerable length, and with his accustomed ability, the question as to the authority of arbitrators to award as to the costs of the arbitration when the authority is not expressly given by the submission, and says that the rule in England, and in Massachusetts and several of the other States, is against the authority; that in Connecticut, New Hampshire, and New York, the rule is in favor of the authority; and concludes by saying that the weight of American authorities seems to be against it. It is a noticeable fact that neither the judge in disposing of the case, nor the counsel in their briefs, make any allusion to the decisions of the courts in this State upon the question. In Hawley v. Hodge, 7 Vt. 237, Chief Justice Williams says: “ There is no question that it is incident to the authority given to an arbitrator in a general submission, when no mention is made [452] of costs, to award concerning the costs of the arbitration.” In the case of Bowman v. Downer, 28 Vt. 532, it was expressly decided that arbitrators have authority to award as to the costs of the arbitration when the submission is silent upon that subject. Isham, J., after referring to the rule as established in England and some of the States, and to the case of Hawley v. Hodge, says that the principle laid down in that case “ having been early adopted in this State, and the general practice being in conformity with it, we must consider the rule as settled. We think, therefore, that the plaintiff is entitled to recover in this case the amount of that award.” The case of Morrison v. Buchanan cannot be regarded as overruling these decisions, as. the case turned upon a different question ; and unless we are prepared to overrule them, we must regard the principle as established in this State, that arbitrators, under a general submission, have power to award as to the cost of the arbitration, including their own fees. This being so, it follows that upon the facts stated in this case, the plaintiff cannot recover. Judgment reversed, and judgment for the defendant to recover his cost. '