Wilson v. Concord Railroad , 85 Mass. 194 ( 1861 )

Hoar, J.

It appears from the report that one of the arbitrators was interested in the cause submitted to their arbitration, as a stockholder in the defendant corporation, at the date of the original submission; and that this interest was not known to the plaintiff until after the making of the award. But the two arbitrators first appointed having failed to agree, the parties agreed that Mr. Cushing should be added to the number of referees, and that the decision of a majority of them should be final. When this latter agreement was made, the interest of the referee had ceased to exist.

We are of opinion that the second agreement constituted a new and independent submission. The first referees had reported, and were fwncti officio. No further action under their original authority was contemplated by them, or by the parties to the suit. The new agreement constituted a submission to three persons, instead of two ; and authorized the decision of » majority, instead of requiring it to be unanimous. There was therefore a change of persons, and of the conditions of the arbitration. By the new agreement, the parties selected their tribunal, knowing that two of the persons selected were not only partial, but had formed and expressed an opinion in the case. We can see no reason to believe that they expected or imagined that this opinion would be changed; or cared, or had any reason to care, upon what grounds, or by means of what influences, the opinion had been formed. The substantial effect of their agreement was to submit the cause to the determination of Mr. Cushing alone.

Under such circumstances, it would be carrying refinements a little too far to hold that the ignorance of one party of a bias which might have influenced the mind of one of the referees in coming to his original decision, should be a cause for setting aside the award.

It was known and understood that the two referees were not only partial, but that they had prejudged the case. No other disqualification then existed. The plaintiff did not choose to make any further inquiry. There is no ground for any imputation of fraud. The award is therefore a bar to the action, and the defendants are entitled to judgment.