Frick v. County of Christian

Brown, J. I am clearly of the opinion that the award ought not to be vacated for want of authority in the commissioners to make the submission. While it was probably not within the scope of their power as agents of the county in the construction of the court-house, the award was formally approved by the county court on the fifteenth of July, 1869, and the money paid in pursuance of it, and the act of the commissioners in making the submission was thereby ratified. Besides this, it does not lie in the mouth of the complainant to claim that the defendants had no authority to enter into the arbitration, he having become a party to it, and consenting to be bound thereby. Whether the bill makes out a case for setting aside the award upon the ground that the arbitrator was mistaken in his facts, is not entirely clear. The authorities all agree that for certain mistakes of fact an award may be set aside, as, for instance, if the mistake appears upon the face of the award in a matter of computation, or if it should turn out that the arbitrator had made use of false scales or measurements, or had used an imperfect compass in running the boundaries of land, or had been guilty of any other gross and palpable error which he had committed without fault of the party seeking to set aside the award. The leading American case upon the subject is that of the Boston Water-Power Company v. Gray, 6 Met. 131, 169 and 182. In a very learned and exhaustive opinion, Chief Justice Shaw discusses the whole subject of mistakes of law and fact in the award of arbitrators, and comes to the conclusion that an award may be set aside if the mistake is of such a nature, so affecting the principles upon which the award is based, that if it had been seasonably known and disclosed to the arbitrators, iE the truth had been known and understood by [254] them, they would probably have come to A different result. “The mistake must be of some fact, inadvertently assumed and believed, which can now be shown not to have been as so assumed.” This case is followed by Rundel v. La Fleur, 6 Allen, 480; Palmer v. Clark, 106 Mass. 373; Carter v. Carter, 109 Mass. 306; Spoor v. Tyzzer, 115 Mass. 40; Davis v. Henry, 121 Mass. 150. These cases lay down, as I conceive, the true doctrine, that if the facts relied upon to invalidate the award were before the arbitrator, considered by him, and his judgment was based upon those facts, the award cannot be set aside by showing that he came to a wrong conclusion; but if a fact existed to which his attention was not called, and upon which he was not asked to apply his judgment, or if he was so misled or deceived that he did not apply the rules which he intended to apply to the decision of the ease, so that upon his own theory a mistake was made which caused the result to be something different from that which he would have reached by the' exercise of his reason and judgment, the award ought to be vacated. In Schenck v. Cuttrell, 1 H. W. Green’s Ch. 297, it is said that an award ought not to be set aside unless the arbitrator himself would change it if the alleged mistake were shown to him. Applying .these principles to the case under consideration it appears that in allowing complainant’s claim for extra work he fixed the price of the cut stone at $1.50 per foot; whereas, it is shown to him afterwards that the commissioners had contracted to pay $1.75 per foot. Here was a mistake which was not called to his attention, and which would have made a difference of $2,492.50 in his award. It further appears that he overlooked a very considerable amount of extra work in and about the portico, and made a mistake of measurement, which, if the actual facts had been made known to him, would have increased the award by $2,323.78. Now,, if these facts had been called to his attention, and he had considered them and rejected the claim, there would be no ground for setting aside the award. But, as by his own statements they were overlooked, and he appears to be desir [255] ous of correcting them, it would seem to be a case, particularly so far as the allowance of $1.50 instead of $1.75 a foot is concerned, for vacating the award. Upon the whole I have come to the conclusion, taking the allegations of the bill together, the complainant has stated a case which may ultimately result in the award being set aside, and that this bill ought not to be dismissd upon demurrer. Possibly, counsel may agree to submit the case upon the testimony tending to invalidate the award, without going into the testimony showing the amount actually due the complainant, if the award be set aside, and thus save expense; hut I think it would bo unjust to dismiss this bill, and allow the case to go to the supreme court, where the bill might be held sufficient, the case sent back, and the litigation indefinitely prolonged. The demurrer will therefore he overruled.