Ketcham v. Odd Fellows Hall Ass'n

Opinion by

Rice, P. J.,

We are of opinion that the court correctly apprehended the nature and substance of the defense set up in the affidavit and correctly held it to be legally insufficient to prevent judgment. It is to be noticed the arbitrators set forth in their award that they heard the testimony, and there is no averment in the affidavit that they did not hear all the testimony the parties saw fit to present, or that it was impossible for them to arrive at a correct judgment from it. The defendant’s complaint is, that, although its attorney at the hearing offered in evidence the terra-cotta blocks in controversy, stated the place where they were stored, and requested the arbitrators to go there and inspect them; and although it is a universal and absolute custom among architects, builders, and contractors, in controversies such as this, and arbitration thereon (so alleged in the affidavit), that the arbitrators as experts make a personal and actual examination, inspection and test of the subject-matter in controversy, yet the arbitrators in this case neglected to do this and therein were guilty of misconduct. It is pertinently suggested by appellee’s counsel that if the case had been tried in court the defendant might have been obliged to produce his exhibits at the trial, if he desired to have them inspected, and should have done so at the trial before the arbitrators. Granting, however, that, in addition to hearing and considering the testimony the parties produced, the arbitrators ought, in obedience to the alleged custom, to have gone to the place where the terra-cotta blocks were stored and inspected them, and that their failure to do this was misconduct on their part, yet it cannot be urged, under the averments of the affidavit of defense, that it was misconduct that involved moral turpitude. At any rate, under the Pennsylvania decisions, it was not such misconduct as vitiated the award, unless (which is not alleged in the affidavit) the plaintiff was in collusion with them or in some way implicated in that action. This conclusion is so convincingly sustained by the opinion of Judge Endlich as to render further discussion by us superfluous.

The judgment is affirmed.