Tucker v. Gordon , 8 Miss. 306 ( 1843 )

Per G-uriam.

Gordon brought this action on a parol award. During the trial a witness was introduced by the plaintiff below, who stated that certain matters had been submitted to him and two others by the plaintiff and defendant, for them to arbitrate, on which they had made their award. The defendant’s counsel asked the witness to state what those matters were, which was objected to, and the witness not permitted to answer. He was also asked by defendant’s counsel, if the nature of the difference was such that defendant had, or could have, any interest whatever in it. This also was objected to and ruled out, and the defendant excepted.

A motion was made for a new trial, but the bill of exceptions to the opinion in overruling the motion was taken in vacation, without any evidence that the motion was taken under advisement, and without any proper foundation to authorize it. This exception can have no weight. The case must turn exclusively on the propriety of rejecting the answers to the questions propounded by defendant’s counsel.

It was a parol submission and a parol award, and of course not entitled to the conclusive character which belongs to awards and submissions in writing. There is an obligation on the part of arbitrators to consider of every thing submitted to them; and, even in courts of law, it is competent for the defendant to show that the arbitrators have not pursued their authority. 16 East. 58.

In such cases it is considered that there was no award, and of course it loses its conclusive character. This must undoubtedly be proper in mere parol submissions and parol awards, that have to be fully proven by witnesses. The testimony of witnesses constitutes the only guide to the nature and extent of the submission. The questions asked tended directly to this point, and were therefore proper.

Judgment reversed, and venire de novo awarded.