Chase v. Jefts , 51 N.H. 494 ( 1871 )

Ladd, J.

It is objected that the act of Martin and Cooke in designating a third man, according to the express direction of the submission, ought to have been in writing and under seal, because such was the character of the submission. No reason is given why that should be so, and we are referred to no authority in support of the position.

It has been held that, in a common law submission, an umpire may be appointed by parol, unless the submission require him to be appointed in writing. Elmendorf v. Harris, 5 Wend. 516; S. C. 23 Wend. 628.

Signing the appointment of umpire is not a judicial act; the judicial act is the agreement as to the appointment of the particular person who is to be umpire, and the signing is merely the record of that which they have already done in the judicial exercise of their functions. In re Hopper, Law Rep., 2 Q. B., p. 376. The New York case goes much further than the judge at the trial went here, because an umpire has authority to decide the case alone if the arbitrators disagree, while a third arbitrator has only equal power with those already agreed on, and must act conjointly with them. We think it was not necessary to the validity of the award that the selection of Hayward should be in writing, under seal.

It is further to be considered, that the defendant appeared and tried his cause before the board as- made up by the choice of Hayward, and so took his chance of an award in his own favor. This, under the circumstances, probably amounted to a waiver of the objection now taken, even were it held that the appointment should have been under seal.

The exception that there was a variance between the proof and the declaration must also be overruled. The submission was, in terms, to three men, two of whom were named, and a mode of supplying the other expressly provided in the instrument. When the third name was furnished, in accordance with this agreement, the submission was to the three men constituting the board just as fully as though all had been named in the outset, and it was no more necessary to recite in the declaration the mode adopted by the parties to create their tribunal, than it would have been had they agreed that the whole board should be appointed by some third person. The submission was to the three men named in the declaration ; the hearing was before the same men, and the award was made by the same men. See Bates v. Cooke, 9 B. & C. 407.

It is said that the award is void for uncertainty. The award was, that the defendant should pay the plaintiff $24, and that the plaintiff should pay the defendant $16, these sums being for wood and timber cut by each on land of the other, as determined by the divisional lines which the arbitrators by their award established between them. It is difficult to see how the matter could be made clearer or more definite. Very likely the arbitrators might have offset or recouped the defendant’s damages, and rendered an award for the difference in favor of the plaintiff; and if they had done so, and stated fully in their report the course they had taken, it would have been sufficiently clear. But the award as made is, to say the least, equally clear, and leaves nothing in doubt as to what they undertook to settle, and did settle, between the parties.

Judgment on the verdict.