Carter v. Carter , 109 Mass. 306 ( 1872 )

Gray, J.

Whenever a case is referred with the consent of the parties to arbitration, whether by rule of court, by mutual bonds in the country, or by agreement before a justice of the peace under the statute, the decision of the arbitrator upon the question submitted to him is final, both upon law and facts, unless otherwise provided by the terms of the submission or of his award; and can be set aside only for exceeding the terms of the submission, for fraud or corruption, or for such mistake as shows that he did not apply the rules which he intended to apply to the decision of the case. Boston Water Power Co. v. Gray, 6 Met. 131. Fairchild v. Adams, 11 Cush. 549, 555. Smith v. Boston & Maine Railroad, 16 Gray, 521. Ellicott v. Coffin, 106 Mass. 365.

In a cause of divorce, the question of the amount to be awarded as alimony is indeed within the discretion of the court, having regard to the conduct of both parties, the amount of property of each, and all the other circumstances of the case. Graves v. Graves, 108 Mass. 314. But it does not follow'that it must necessarily be heard and decided only by the judge in person, when he deems it convenient to have the facts ascertained- in the first instance by a master or similar officer of the court, or the parties desire that it may be submitted to arbitration. Our divorce act expressly authorizes this court, in all cases when the course of proceeding is not specially prescribed, to hear and determine all matters coming within its purview according to the course of proceeding in ecclesiastical courts and courts of equity, and to issue all proper and necessary processes. Gen. Sts. c. 107, § 53. Where the jurisdiction in divorce is vested in the court of chancery, the ordinary course of proceeding is to refer the question of alimony to a master. Peckford v. Peckford, 1 Paige, 274. Cooledge v. Cooledge, 1 Barb. Ch. 77. Barber v. Barber, 21 How. 582, 585. And in England, independently of any statute, the court of chancery may with the consent of parties refer a case pending therein to arbitration, and, according to the more modern authorities, when the agreement upon which the order of reference is made provides that the award shall be final, it can be set aside for the same causes only as at law. Knox v. Symmonds, 1 Ves. Jr. 369. Dick v. Milligan, 2 Ves. Jr. 23; S. C. 4 Bro. Ch. 117, 536. Ford v. Gartside, 2 Cox Ch. 368. Young v. Walter, 9 Ves. 364.

In the present case, the agreement of' the parties, and the order of the court in accordance therewith, submitted to the final determination of the arbitrator the question what sums of money and property the husband had received of the separate property of the wife, and provided that those sums should be paid overto,the wife as alimony, and in full of all claim therefor, and required the award to be reported to the court only in order that process might issue to enforce it. The single sum awarded by the arbitrator is reported by him to be the amount that the husband has received and has not accounted for of the separate money and property of the wife.

The first cause assigned for the motion to set aside the award is, that among the claims presented by the wife to the arbitrator was one for a loss of profits from improper investment by the husband of her separate property. But the motion itself states that this claim was disallowed by the arbitrator; and can be supported, upon this point, only by proof that he by mistake after-wards included this claim in computing the amount for which the husband was liable.

The second cause assigned amounts to no more than an allegation that the arbitrator made an erroneous decision upon the evidence introduced before him; and was abandoned at the argument.

The third cause assigned is, that the arbitrator allowed interest on the amount received by the husband of the separate property of the wife. But we. are of opinion that the question whether interest so received by him was money belonging to the wife as her separate property was within the terms of the submission.

It is further alleged that the balance of the interest account was found against the husband by a mistake of computation. If the husband can prove that in this or any other respect the arbitrator by mistake did not apply the rules which he intended to apply to the case, so that the award is not the result of his judgment, and therefore is not what he intended it to be, the award should be set aside. Hutchinson v. Shepperton, 13 Q. B. 955. Boston Water Power Co. v. Gray, 6 Met. 131, 168-170, 181, 182. Upon this question only, the

Case is to stand for hearing.