Cohn v. Wemme

Mr. Justice Moore delivered the opinion of the court. 1. It is contended by defendant’s counsel that the denial of the arbitrators to receive material testimony offered by the parties renders their determination liable to be vacated; that such refusal affords a valid defense to an action on the award, and, this being so, the court erred in directing a verdict for plaintiff. A text-writer, in discussing the consequence that may result from a denial of arbitrators to receive competent evidence, says: “There are cases which would go far to sustain the broad, general rule that, if arbi 149 trators refuse to hear testimony which is offered, and is in fact pertinent and material to the controversy, going to prove a point which needs to be proved, and properly admissible, the error may be cause for vacating the award or report”: Morse, Arb. & Award, 143. To the same effect, see 3 Cyc. 748; 2 Am. & Eng. Enc. Law (2 ed.), 655; Redner v. New York Fire Ins. Co., 92 Minn. 306 (99 N.W. 886); Halstead v. Seaman, 82 N. Y. 27 (37 Am. Rep. 536); Van Winkle v. Continental Fire Ins. Co., 55 W. Va. 286 (47 S. E. 82); McDonald v. Lewis, 18 Wash. 300 (51 Pac. 387); Canfield v. Watertown Ins. Co., 55 Wis. 419 (13 N.W. 252). A party considering himself injured by the misconduct of arbitrators may invoke the maxim that equity will not suffer a wrong without a remedy, and in a suit instituted for that purpose secure a decree setting aside the award: Morse, Arb. & Award, 543. 2. It is argued by defendant’s counsel that the statute authorizing a defendant to set forth by answer as many defenses as he may have (B. & C. Comp. § 74) permitted them to plead the facts relied upon as a defense in an action at law based on the award, and in support of this principle cite several cases which uphold that doctrine. Thus, in Knowlton v. Mickles, 29 Barb. 465, it was ruled in 1859 that in actions on awards, as in other cases under the Code of New York, a defendant may put in an answer alleging facts sufficient to vacate the award, and pray an affirmative judgment to that effect, and that he was no longer driven to a cross-action for that purpose. So, too, in Garvey v. Carey, 35 How. Prac. 282, it was held in 1868 that in an action on an award an answer which sought to avoid the determination on the ground of misconduct on the part of the arbitrators and mistake in ascertaining the amount due, afforded a defense that was invulnerable to demurrer. At the time these decisions were rendered, the Revised Statutes of New York (vol. 2, 4 ed.), pt. 3, c. 3, 150 tit. 6, § 150, contained the following clause: “The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” In Wisconsin, under a similar statute, the same rule obtains : Ferson v. Drew, 19 Wis. 241; Canfield v. Watertown Ins. Co., 55 Wis. 419 (13 N. W. 252). We have no statute authorizing an equitable defense to be interposed to an action at law, and though in this State a court of equity and a court of law are presided over by the same judge they are essentially different forums: Beacannon v. Liebe, 11 Or. 443 (5 Pac. 273); Ming Yue v. Coos Bay Nav. Co., 24 Or. 392 (33 Pac. 641); State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471, 31 L. R. A. 473); Willis v. Crawford, 38 Or. 522 (63 Pac. 985, 64 Pac. 866, 53 L. R. A. 904); LeClare v. Thibault, 41 Or. 601 (69 Pac. 552). In Fire Association v. Allesina, 45 Or. 154 (77 Pac. 123), it was held that, where appraisers were appointed to adjust a fire loss, the award could not be impeached or set aside for fraud in a court of law. As the decision in that case is controlling in this, it follows that no error was committed as alleged, and hence the judgment is affirmed. Affirmed.