Gibson v. Burrows

Campbell, C. J. Error is brought on a judgment rendered in the Superior Court of Detroit in favor of Margaret Burrows against John T. Gibson, on what purports to be the finding of certain persons acting as arbitrators or referees. It is claimed the action of those persons was not had in such a way as to authorize the court to enforce it. Two suits were pending between these parties in November, 1877. Gibson had a chancery proceeding in the Wayne circuit court to enforce a lien under a build [715] ing contract, and Mrs. Burrows bad a suit in tbe Superior Court of Detroit against bim for damages growing out of tbe same contract. On tbe 12th day of November, 1877, tbe two parties entered into a written agreement, entitled in tbe pause in tbe Superior Court, providing that tbe decision of three arbitrators, or a majority of them, should be entered and judgment rendered thereon, with special agreement as to costs. Tbe arbitrators were to be chosen, one by each party and a third by tbe other two. They were to take tbe contract, — allowing Gibson $165, tbe unpaid balance, and such sum as they should see fit for extras named, and then determine tbe damages sustained by Mrs. Burrows by non-performance of tbe contract according to its terms. It was expressly provided that they should bear no testimony, and should determine tbe whole matter by their own judgment on personal inspection of tbe work as compared with tbe contract. These are tbe important provisions. After tbe choice of arbitrators tbe suit in the "Wayne circuit court was to be discontinued and tbe lien discharged. It was further declared that all matters not therein contained concerning tbe powers and duties of tbe arbitrators should be left to their judgment and discretion, under tbe super-, vision of tbe Judge of tbe Superior Court. They found an award which declared a balance in favor of Mrs. Burrows, derived from cross allowances particularly set out. On this judgment was rendered. It is insisted tbe court bad no power to act upon this award, because it did not conform to tbe statute. It is not acknowledged before any officer — which tbe statute expressly requires. Comp. L., § 6891. Some other matters might be suggested, but this alone is fatal. An arbitration which does not in all respects conform to tbe statute must be enforced if at all by bill or action. No judgment can be rendered on it. Gallagher v. Kern, 31 Mich., 138; McGunn v. Hanlin, 29 Mich., 476. Defendant in error conceding this defect attempts to [716] sustain the proceeding as a reference. But references— like awards — can only be made the foundation of a judgment when they conform to the statutes. Under our statutes (Comp. L., ch. 186) the referees are required to conduct their business in the same manner as a trial by the court. The whole machinery of the law contemplates the introduction of testimony and all the other incidents of legal proceedings, with rulings on testimony and findings of fact and law subject to revision for errors. Here the arbitrators are required to receive no testimony and to act entirely on their own judgment on an inspection of the work out of which the controversy arose. There is no resemblance to a reference. The award, if valid, must be enforced as a cause of action and not as a substitute for a verdict. No judgment can be given on it. The judgment must be reversed with costs as there is nothing left of the lawsuit, both suits having been made subject to the agreement, which is not void but merely extra-judicial. The other Justices concurred.