Willis v. Higginbotham

Cooper, J., delivered the opinion of the court. Where matters in dispute are referred to arbitration it is necessary [166] that all the arbitrators should join in the award, unless by the agreement of the parties expressed or clearly to be inferred a number less than • the whole may make the award. Morse on Arbitration and Award 162. The declaration in the case at bar does -not aver that the agreement for submission was that a majority should have power to make the award, nor do we think such an agreement may be inferred from the face of the contract itself. Where two arbitrators are selected by the parties, and there is a provision that in case they cannot agree a third is to be chosen, it may be fairly said that the parties contemplate an award to be made by the two who shall concur. Battey v. Button, 13 John. 187. But no such inference ought to be drawn from an agreement that the two or four arbitrators chosen ,by the parties may add another person to their number without regard to the existence or non-existence of differences between those chosen by the parties. The mere selection of an odd number of arbitrators does not, we think, sufficiently indicate an agreement that a majority may make the award. Judgment reversed.