Harryman v. Harryman

Alvey, J.,

delivered the opinion of the Court.

By the order of Court, passed on the application of the parties, all matters of dispute involved in the pending cause, were referred to three named arbitrators, in the usual way, and upon the usual terms. An award was subsequently filed, signed by but two of the arbitrators named in the order of reference, the third dissenting, and filing a separate statement, as to his views of the subject; and one of the arbitrators signing the award, in a subsequent statement, which has been filed in the cause, gives such explanations of his views and understanding of the matter, as to make it doubtful, if his explanations could be received as evidence, whether the award is a fair exponent of his judgment of the matters referred.

But, without deciding any question as to the admissibility of the statements and explanations of either the dissenting or concurring arbitrator, for the purpose of impeaching the award, we think the award fatally defective, and therefore was properly set aside by the Court below.

Apart from all other objections, as the order of reference, that being the only evidence of the submission, did not provide that a less number than the three named referees might make an award that should be binding upon the parties, the authority ■ delegated has not been well exe% cuted. The delegation of such power is for a mere private purpose, and the authority being joint, it is necessary that all the arbitrators or referees should concur in the award, unless it be otherwise provided in the submission. Green vs. Miller, 6 John., 39. In cases of persons appointed to fulfil public duties, the decision of a majority is generally sufficient, but the cases are numerous to show that the law puts a different construction on authorities of a private nature like that of 'arbitrators, and generally requires that all who are entrusted with such powers should concur in order to their valid execution. Russell on Arb. and Aw., 208, and authorities there cited; Watson on Arb. and Aw., 73. In 2 Greenl. Ev., sec. 74, the principiéis stated as being well established, and without qualification, that if “the submission be to several, without any authority in the majority to decide, and the award is not signed by all, it is bad. And though a majority have power to decide, yet, in an award by a majority only, it must appear that all the arbitrators heard the parties, as well those who did not, as those who did concur in the decision.” Towne vs. Jaquith, 6 Mass., 46; Baltimore Turnp. Case, 4 Binn., 481; French vs. Richardson, 5 Cush., 450; Crofoot vs. Allen, 2 Wend., 494; Bulson vs. Lohnes, 29 N. Y. 291.

In this case, the award having failed by reason of the dissension of the arbitrators, the reference is at an end, unless renewed by agreement of the parties, The Court has no power, unless given by statute, or the agreement of the parties, to appoint new arbitrators ; and oidinarily it has no power to refer the matters back to the same arbitrators, after setting aside their award, unless such power be one of the terms of the submission. Among what are known as the “usual terms” of reference, which should in all cases be reduced to writing and filed in the cause, is a clause stipulating, that in the event of either of the parties disputing the .validity of the award, or moving the Court to set it, or any part of it aside, the Court shall have power to remit the matters referred, or any of them, to the reconsideration’and determination of the arbitrator or arbitrators making such award. Russell on Aw., 80, 658. But in a case like the present, where the arbitrators do not agree, such a term in the submission is wholly unavailing, as it would be utterly futile to remit the matters of reference to the same arbitrators, when it is apparent that they do not agree, and that the reference must ultimately fail.

(Decided 22nd June, 1875.)

Under the circumstances, the Court below pursued the only course that it could pursue, and that was to set aside the award, and re-instate the cause. Crawshay vs. Collins, 3 Swanst., 90; Calvert vs. Carter, 18 Md., 106.

Order affirmed.