Stone v. Atwood

Bkeese, J. The bill was filed in this case, by the appellant, to correct a mistake in the award after the same had been in 'most particulars executed by the parties. The record shows a submission in writing, under bonds, by the appellant and Atwood, of certain matters in difference between them, growing out of the lease of the “ Orient House” in Chicago, owned by appellant, and occupied by Atwood, and money loaned by appellant to Atwood, and out of which had arisen divers suits at law. By the terms of the submission the arbitrators were required to find first, the balance due from Atwood to appellant upon a statement of their respective accounts. They were then required to set aside a portion of the furniture in the house, to be appropriated in payment of certain debts then due and payable by Atwood to Bowen Brothers, A. B. and G. H. Miller, and Charles Toby, amounting to about three hundred and fifty dollars, provided that the indebtedness found due to appellant from Atwood, should first be paid in full out of the furniture in the house. The appropriation to Bowen and the others to be made out of the residue of such furniture, should there be any. By the terms of the submission it was also agreed between Stone and Atwood, that the balance, after allowing all just claims found by the arbitrators to be due from Atwood to Stone, should be paid and satisfied in full by Atwood out of the furniture in the Orient House, in the following manner: The arbitrators were to fix and determine the valuation of the furniture; whereupon Atwood was to deliver to Stone, and Stone was to receive at such valuation, so much of the furniture as should be necessary to pay in full the amount of such balance, so to be found in his favor, and the arbitrators were to set aside so much of the residue of the furniture at the valuation as aforesaid, as might be necessary to pay the debts due Bowen Brothers, A. R. and G-. H. Miller, and Charles Toby, if there should be sufiicient; and as to the residue of the furniture, if any there should be, Stone was to take and receive the same at the valuation to be fixed and determined as aforesaid, and give his promissory notes therefor in manner in the submission specified. The arbitrators were the counsel of the parties, and they made their award in writing, on the 20th day of May, 1859. It recites as follows: “ There is due to the said Stone from said Atwood, for money loaned and interest on the same, the sum of (naming the items,) three thousand one hundred and ninety-three dollars and forty-seven cents. And there is due to Atwood from the said Stone, (naming the items,) ten hundred and seventy dollars and forty-three cents, and that the balance due said Stone, from said Atwood, is the sum of two thousand one hundred and twenty-three dollars and four cents.” The award then finds the amounts due respectively to Bowen and the others, and proceeds: “ And we set aside for payment of the debts due the said Bowen, etc., to be appropriated by the said Atwood in payment thereof, the following articles of property, to wit: ” (naming them and their value.) The value of this furniture thus set apart, foots up four hundred and forty-one dollars and fourteen cents. The award then proceeds: “ And further, we do estimate and value the balance of furniture not appropriated in payment of debts as before mentioned, to be of the value of three thousand four hundred and twenty-two dollars and eighty cents, according to accompanying schedules made by C. Morgan, A. R. Miller, Hollister, C. Toby, A. G. Burley, and the undersigned, and we do award and adjudge, that the said Stone shall take the said furniture, according to the said schedules at the valuation as aforesaid, and that the said Stone shall be credited with the sum of two thousand one hundred and twenty-three dollars and four cents, being the amount found to be due the said Stone, from the said Atwood, and upon the delivery thereof to said Stone, he, the said Stone, shall execute and deliver to said Atwood his promissory notes for the sum of twelve hundred and ninety-nine dollars and seventy-six cents, payable twelve months from date of this award,- to wit, the 20th day*of May.” The various schedules referred to, after making the deductions allowed by the appraisers for wear and tear and inj ury to the furniture, amount to the sum of two thousand seven hundred and eighty-seven dollars and twenty cents, from which is to be deducted the value of the furniture set apart to pay Bowen and the others, -amounting to four hundred and forty-one dollars and fourteen cents, leaving to go to appellant, two thousand three hundred and forty-five dollars and six cents. Atwood’s debt to appellant amounted to two thousand one hundred and twenty-three dollars and four cents, which deducted from the value of the residue of the furniture, left to be paid by appellant to Atwood, the sum of two hundred and twenty-two dollars and two cents only. The arbitrators award to Atwood the sum of twelve hundred and ninety-nine dollars and seventy-six cents, as the amount to be paid by appellant to Atwood, after making the above deductions. The error arises, in setting down the value of the furniture in schedules Hos. 4 and 5. That value is stated at twelve hundred and twenty dollars and three cents, subject to a deduction of twenty per cent, for wear and tear, which would reduce the amount to nine hundred and seventy-six dollars and three cents. Instead of this sum, by mistake (as is alleged by appellant not in his bill, but in the argument of his counsel,) the sum of one thousand nine hundred and seventy-six dollars and three cents, was set down as the value, being seven hundred and fifty-six dollars more than the original value of the articles, and one thousand dollars in excess, after making the deduction of twenty per cent. It is nowhere alleged in the bill, that this mistake appears on the face of the award, and evidence was offered by the appellant to substantiate it. There being no allegation in the bill of the patent character of the alleged mistake, and evidence having been offered by the appellant to show it, justice and equity would require that the same privilege should he awarded the defendant to controvert the mistake by evidence on his part. It is probable one of the arbitrators is cognizant of the mistake to the extent of one thousand dollars against his client, the appellant here, whilst it is equally apparent from the evidence, the other arbitrator is wholly ignorant thereof, and that the award as published, is a correct and true award, and is his award, irrespective of the mode and manner by which results were reached. We hold the principle to be well established, that a court of equity will correct a mistake in an award on one ground only, that the mistake was mutual—that all the arbitrators acquiesce in it— that with the alleged mistake it is not their award—that corrected, it is their award. An award is nothing more than an agreement made for parties which they could not make themselves, and it must be mutual, a concurrence in results—a meeting of the minds of both in the conclusions at which they arrived. The evidence is clear, that the alleged mistake of one thousand dollars was not participated in by both arbitrators. One of them distinctly states, if the award is reformed as proposed, it ceases to be his award. On data satisfactory to him, he found the several amounts allowed, and their appropriation. Can a court of equity then, when the mistake is not mutual —not participated in by all the arbitrators, reform the award ? We think not. Had the scope and prayer of the bill been, to set aside the award, on account of the alleged mistake, leaving the parties to their original rights, a decree might have passed for such purpose, but the prayer of the bill is, to reform the award, to correct an error which does not appear to have been mutual, and which if corrected, will not conform to the intention of both the arbitrators, but to that of one only. It would then cease to he an agreement'of the parties made through the arbitrators. We have not been able to find a case, where an alleged mistake in an award has been corrected, except where all the arbitrators concur in admitting the mistake. On principle it could not be otherwise, for as an award is but an agreement of the parties, it must conform to the intention of the parties, and a court of chancery in a proper case, will so decree. The appellant, to show the mistake, which he does not allege in his bill appears on the face of the award, offered testimony to show it, and having done so, contends that the Appellee, Atwood, shall not be allowed to controvert it by other testimony. He contends that he is estopped from making proof that if the award is reformed, it would not be the award of the arbitrators. If the bill set out the award, with the accompanying schedules, and alleged that the mistake. appears on its face, and no proof is offered by the complainant, other than the exhibits themselves, it might be the defendant would not be permitted to allege against it. But this is not such a case. The appellant attempts to make out his case by testimony, which the defendants can rebut, and show there was no mistake, or if one, and if corrected, the award would not be the award of both arbitrators. If not so, then one party would have a great advantage over the other. Apparently there is a mistake against appellant, of one thousand dollars, which, if rectified, the other party shows would be to . his disadvantage; and, therefore, the award would not be the award of either of the parties, and so not the agreement of the parties. A court of equity can only make agreements, upon the alie-*— gation of a mistake, conform to the intention of the parties. By correcting the error as prayed for in this case, the court would not do so. The doctrine of estoppels does- not apply because parties are not bound by an award, if it is not the result of the joint judgment of the parties. If one party attacks it by testimony, the other party can defend by the same weapons. . On the point that an arbitrator is not a competent witness, that depends upon circumstances. Like a juror, he cannot be called to impeach his award, but like him he can be called to sustain it. That was the purpose and office of the testimony of the arbitrator called by Atwood. The complainant’s case was dependent on the testimony of one arbitrator chosen by himself; equal justice would demand the defendant’s case should be protected by the testimony of the other, if possible. We are satisfied if the award is reformed as proposed, it would not be the award of the arbitrators. This was the view taken by the Superior Court, and we think the correct view. The decree must be affirmed. Decree affirmed.