Walker v. Walker , 28 Ga. 140 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

The first question is, was the judgment right, rendered on the motion to enter the award on the minutes of the court, and to make it the judgment of the court ? This question depends on the force of the objections to the award.

Those objections were numerous ; the more important of them will be first considered. These may be reduced to three.

1. That N. F. Walker did not have “timely notice” of the meeting at which the umpire acted ; and that in the absence of him and his counsel, the counsel of the opposite party were heard.

2. That the award was on a condition.

3. That the award was incomplete, being silent as to the demands set up against N. F. Walker, individually.

What was the force of the first of these objections? This question obviously involves several others. These I will take up in their order.

First, then, was N. F. Walker, entitled to a notice of the meeting, at which the umpire acted.

1. It is a general rule of the common law that the parties are entitled to notice of the meetings of the arbitrators. Anon. 1, Salk. 71. Watson on Arb. 171-2. Russ, on Arb, 191, 169. Indeed, that this proposition is true, was not disputed.

And if it be true that the parties are entitled to notice of the meetings of the arbitrators, it must be equally true that they are entitled to notice of the sittings of the umpire. “The umpire when called upon to act, is in general invested with the same powers as the arbitrators, and bound by the same rules, and has to perform the same duties.” Russ. Arb., 230. In re Salkeld and Slatio, 12, Ad. and Ellis, 767, 4 Dall. 232.

Is there any thing to take the present case out of the common law rule ? Have the pai’ties agreed to dispense with the1 rule ? There is no evidence that they have. There is nothing in the submission to show that they have. The submission is silent on the subject. Its language is, “the parties having closed, the arbitrators assisted, if need be, by an umpire- chosen as aforesaid, shall proceed to make an award within thirty days after the cause is finally submitted to them.” This language is somewhat peculiar. It is not this — the parties having closed, the arbitrators shall make their award within thirty days afterwards, but it is this — the parties having closed, the arbitrators shall make their award within thirty days after the cause is finally submitted to them. Here is room for an implication, that closing the cause by the parties, was not finally submitting it to tbe arbitrators, but was only submitting it to them subject to be resumed if ail umpire was called in. And if there is room for that implication, a regard to justice and propriety requires us to make the implication. If it is just and proper that the parties should be heard by the arbitrators, it can be but just and proper that they should be heard by the umpire. Perhaps, then, it is too much to say, as I have said, that the submission is silent on the point; perhaps, wc ought rather to say that the submission itself speaks by implication, and declares that the parties were to have an opportunity of re-opening the case before the umpire — if one was called in — and, consequently, that they were to have notice of his being called in, and of the time and place of his sitting.

"We think, then, that N. F. 'Walker ivas entitled to notice.

To what sort of notice was he entitled ?

1. There is nothing in the submission on this question. For the solution of the question, therefore, we must resort to the common law ; and that says, in such a case as this, merely what it says in so m,any other similar cases, that the notice must be a reasonable or “timely” notice.

Was the notice in this case a reasonable notice ?

The sitting of the umpire was on the 10th of January, 1857, at Macon. On the 7th of January, 1857, one of the arbitrators, Mr. Stubbs, putin the postofB.ee at’Macon, three letters, one to Mr. Gibson, one to Mr. Greene, who were the counsel of N. F. Walker, and one to Walker himself, properly addressed, in which letters he stated that an umpire had been selected, “to meet and hear the cause, at 12 M., on Saturday the 10th January, 1857, at Macon.” Walker resided in Upson county, at a place about forty miles from Macon, and not near to any rail road. He never received the letter to him. Gibson resided within a mile of Barnesville, a place forty miles from Macon, bnt on a railroad. He did not receive hi letter till the 9th of January, at 9 o’clock, A. M.; which was, after the passenger train for Macon had passed by Barnesville. In the afternoon of that day, he replied to* the letter by a freight train, and this is what he said:

“It is both morally and physically impossible for either Mr. "Walker, or his counsel, to be with you, so early as tomorrow, M.; and in behalf of my client, I must beg you will allow him to be heard. Monday we cannot go, on account of Upson adjourned court.” This was duly received; and was read by the arbitrators and the umpire* before the hour of meeting the next day.

Mr. Greene resided in Thomaston, twenty miles from Barnesville. He received his letter, not until the day of the meeting, and after the hour of the meeting. There was a daily mail between Thomaston and Barnesville.

Was such a notice as this a reasonable notice? Surely not, unless there was in the case something peculiar to render it so. And it was argued that there were special matters in the case, which were sufficient to render the notice reasonable. Those matters may be thus stated. The submission contained this stipulation : “and the parties and arbitrators shall so direct the case, as to have the award ready to be entered on the minutes of Upson Superior Court*, at the” next November term, “if possible.” That term was adjourned to Monday the 12th day of January, 1857, two days after the day appointed for the session of the umpire. The disagreement of the two arbitrator’s, and the consequent appointment of an umpire, did not happen until the 7th day of January, 1857. These were the special matters ; and the argument was, that the arbitrators and the umpire were bound by the submission> to make up the award on Saturday the 10th of January, so that they might return it to the court, which was to meet the next Monday; and, consequently, that both, with respect to the notice given, and to the day appointed. for the umpire’s session, the arbitrators and the umpire did the very best that it was in their power to do. But we do not think it true, that the arbitrators and the umpire were thus bound by the submission. They were to return the award to that term, “if possible.” But what wTas meant by “if possible ”? that they were to so return it, even if in doing so, they would have to violate law— have to disregard a principle so important, as the one which makes reasonable notice of a judicial proceeding, a pre-requisite, to a binding judgment in that proceeding?

Besides, this part of the submission is to be construed with the part which allowed the arbitrators thirty days to make their award in, after the case was “finally submitted to them.” . So construed, the arbitrators would have had thirty days to make their award .in, after any day they might have chosen as the day. for the umpire’s session. That, if not even a later day, would be the day on which the cause would be “finally submitted” to the arbitrators ; and what the submission required, was, that the award should be made within thirty days after the cause was finally submitted to the arbitrators.

These special matters, then, we think, were not sufficient to render the notice a reasonable notice.

"What effect did this failure to give reasonable notice to N. F. "Walker, have on the- award? Bid it have the effect to vitiate the whole award, or only a part — the umpirage ?

The submission says, that the award “shall be binding except for fraud.” Fraud in whom ? In either the arbitrators, or the parties. There is no restriction of the provision to either, to the exclusion of the others.

First, then, was the failure to give the notice, a fraud in the arbitrators ?

In connection with this question we must look at what occurred subsequently to the failure. What was that ? The arbitrators and umpire had the session on the day appointed. Before them appeared the counsel of the other parties, who were permitted to be heard in full— both the arbitrators and umpire, and those counsel knowing that the counsel on the other side were desirous of also being heard. The question before the umpire was a question of the utmost importance, involving about $25,000, The notice, although not a reasonable one, as to N. E. "Walker and his counsel, was a reasonable one as to his adversaries and their counsel; these counsel residing in the same place with the arbitrators and the umpire — Macon, and consequently receiving the notice on the same day on which it was mailed to N. E. Walker and his counsel. At any rate, they considered the notice to them sufficient, for they appeared under it without objection, and were heard. Finally the decision of the umpire was against N. E. Walker.

Now was the failure to give Walker the reasonable notice taken in connection with those consequent facts, a fraud in the arbitrators and umpire, on Walker ? That is the question. It was, certainly, unfair treatment in them to Walker ; and it deprived him of a most important right, the right of being heard by the umpire. And is not any unfair treatment of one of the parties to an arbitration, by the arbitrators, a fraud in them on him ? Does it make any difference that they themselves gain nothing by the course they pursue, but think that they are only pursuing the terms of the submission ? Certainly that these things are true, does not prevent the course from operating unfairly on that party. To him, the effect is the same as if the course were one that came from the worst motive and were one by which the arbitrators and umpire would themselves be gainers. I rather think myself that anything done by the arbitrators which operates unfairly on one of the parties and to his prejudice, is, in law, a fraud in them, on him. So far as the present case is concerned, it is no doubt true, beyond question, that whatever the arbitrators clid they did in the best faith— influenced by their sense of duty under what they considered the exigency of the submission. Still the question remains, did not their conduct operate unfairly on one of the parties, N. F. Walker ? And was not that in law a fraud on him ?

2. But secondly, however, this may be, we do think, that in cases of this sort, to allow the favored party to take advantage of such conduct of the arbitrators, would be to allow him to perpetrate a fraud on his adversary. He certainly would be a gainer by the conduct. And the arbitrators being only his agents, to allow him to profit by their unfair conduct, would be the same as to allow him to profit by his own unfair conduct. And to allow a party to an arbitration, or to an ordinary suit, to profit by his own unfair conduct, would certainly be, to allow him to perpetrate a fraud ou his adversary.

We think, then, that the failure in the arbitrators and the umpire to give to N. F. Walker reasonable notice of the session of the umpire, with the facts 'attendant and consequent, on that failure, did amount to a fraud on him —a fraud at least in the other parties, if not in the arbitrators §nd the umpire.

Assuming this to be so, the next question is, how far did such fraud vitiate the award ? . Bid it vitiate the whole award or only the part of it which consisted in the action of the umpire ?

3. If an award has a good part and a bad part, and the bad part is separable from the good; and the making of the bad part was not a condition of the making of the good; and the party in whose favor the bad part operates insists upon the good part being sustained, what can there be to prevent the good part from being sustained, and only the bad. rejected ? Surely there can be nothing except a special stipulation in the submission — a stipulation that there shall be not only an award as to all the matters submitted, but that that award shall be good as to all of those matters. And so, we think, say, the authorities, on a comparative view of them, 3 Vin. Abr. Arb. (L.) 76, Ormelake vs. Cake. Cro. Jac. 355; Baspole’s Case, 8 Coke; Wrightson vs. Rywater, 3 Mees. & W. 203; Russ, on Arb. 322; Wats, on Arb. 238; Pope vs. Brett, 3 Saund. 292, Note 1.

There are, however, some decisions to the contrary, perhaps. See Stone vs. Phillips, 4 Bing. N. C., 37.

Taking it to be true, then, that an award is to be upheld in the case aforesaid, unless there is in the submission a stipulation by which the award is not to be binding, except all the matters 'submitted are decided, the question is, does the submission in the j)resent case contain any such stipulation ? And the answer to that question must, it would seem, be-in the negative. The submission contains not even the clause, uita quadjiat de pmemissis” — “so that the award be made, of and concerningthe premises.” Russ. Arb., 250. It contains no similar clause, whilst in several other important respects, it contains clauses of restriction on the power of the arbitrators. It may be said in the present case, as it was said in Wrightson vs. Ry-water, (Supra,) that “the parties have given the power to the arbitrator to dispose of all matters, but have not made it a condition that all the matters should be disposed of by him.”

We think, then, that the effect of the failure in the arbitrators, to give N. E. Walker reasonable notice of the session of the umpire, was merely to make the umpirage void, not to affect the other part of the award. That part, we think, remained good. And this is our answer to the general question, under consideration, viz: the question, what was the force of the first of the three main objections to the award, the objection that N. E. Walker did not have reasonable or “timely” notice of the session of the. umpire, and that in the absence of him and his counsel, the counsel of the other parties were heard by the arbitrators and the umpire.

Consequently, we affirm the judgment of the court rendered on this question of notice.

The next of the important objections to the award, was, that it was an award made on a condition.

4. The umpirage was, it is true, made on a condition j hut the condition was one confined exclusively to the umpirage. All the other part of the award had been made — completely made by the two arbitrators, before they called in the umpire. Therefore, it was impossible that the umpirage could have had any influence on them in their making that part. The condition, then, if it could affect this' part of the award at all, could do so, only by affecting the umpirage. But the utmost operation it could have on the umpirage, would be to render the umpirage void. And that being void would not, as we have seen, render the other part void.

We think, therefore, that this too was not a sufficient objection.

The last of the three important objections, was, that the award was incomplete — that it contained no decision of the demands against N. IT. Walker, individually.

5. These demands belonged either to the part of the case covered by the umpirage, or to the other part. If they belonged to the former part, the fact of their non-decision was a fact like the fact that the umpirage was on a condition; and, therefore, was a fact that could reach the other part of the award only by its effect on the umpirage part; and its effect on this part could not be greater than to make this part void. And that would be an effect which, as we have seen, would not he sufficient to render the other part of the award void.

If the demands belonged to the part of the case not covered by the umpirage, then it is not true that there is no decision of them in the award. If that was the fact the two arbitrators decided, them. This appears from the terms of their award. They first make their award as to two matters specifically. Then they proceed thus : “As to all other matters submitted to us, (except as to the amount of money on hand at the death of William W. Walker, and as to which we have called in the lion. Eugenios A. Nisbet as umpire,) we find and award as follows.” Then they state the particulars of the award, the sum of which statement is, that they award to the complainants respectively, several sums which, in the aggregate, amount to between $50,000 and $60,000, to be paid by N. E. Walker as administrator. This was equivalent to an award that Walker was not to pay anything individually. The maxim, expressio unius exclusio alterius, applies.

Either way, then, we think, that this objection was not good. And so, we also affirm the court below on this point.

The other objections were, it seemed, hardly relied on at all by the counsel for the objecting party, N. E. Walker. They, for the most part, were passed by his counsel in silence. We think it best, therefore, to dismiss them with a single remark, that if there is any merit in them we have not been able to see it, in the slight view of them which we have taken.

Thus far, then, we affirm the action of the court below.

There remains another matter, and in that we think the court erred.

The part of the ease covered by the umpirage, having become open and undetermined by reason of the court’s judgment declaring the umpirage void, the case was, we think, in a condition to proceed to trial, as to that part, in due course. We see nothing to show that this was not the condition of the case.

The court below seems to have decided otherwise ; although we are not quite sure that we understand what was the import, or rather the extent of the court’s decision.

We think that the case, as to this part of it, ought to go on in regular course, in the court below, to a final decision.