M'Curdy v. Daniell

Grant, J. (after stating the facts). There is no real dispute as to the facts. The evidence is overwhelming that it was agreed to strike out this provision of the contract, and that the complainants signed it with the understanding and belief that the defendant’s agent, who did the business for her, had erased it. He did in fact erase it in two places, but left it unerased in one. While it is true that the articles of submission were executed in triplicate, and that the complainants retained one, it is manifest that they rested upon the supposition that all the erasures had been made, and that the articles required a unanimous award. We do not think the complainants are estopped to set up this claim by the fact that they retained one of the originals, and might have discovered the error. It was not entirely the mistake of the complainants. Defendant’s agent, who made the contract for her, was trusted to make the necessary erasures. His failure to do so was a fraud upon the complainants. It is immaterial whether he (the agent) so intended or not. He knew that the provision for an award by two was to be stricken out. He agreed and undertook to strike it out. He failed for some reason to do it. The contract under which the arbitrators acted was not the contract agreed upon. We think the complainants are entitled to the relief prayed for. [57] Decree is reversed, and decree entered in this court for the complainants, with the costs of both courts. The other Justices concurred.