Morrison v. Buchanan

Redfirld, Ch. J.

The important proposition discussed at the bar, how far an arbitrator may award costs, and especially the costs of the arbitrator, when no such power is expressly given in the submission, is one of considerable practical importance. Upon principle it would seem that no such power should exist. It is quite too important a power to be implied as a mere incident of the submission. The implication from the omission to specify such a power in the submission, is rather that it was not intended to be conferred, than that it was supposed to follow the award of damages. The more natural and the safer construction of submissions to arbitration is not to extend them beyond the words used) unless there is some very obvious ground of extending their import by way of implication.

In regard to the rule of construction in the decided cases upon this point) we find nothing which is satisfactory to our minds, giving the power, as a mere incident of the submission, to award such costs. It is obvious that such is the ordinary result when an award is made in a case pending in court, when the submission is made a rule of court. This is expressly so provided by our statute, and is so also by the English statutes, when the arbitrator so directs.

But it seems to be made a question in the English courts how far a general power to award costs, expressly provided in the submission, extends to the costs of the reference.

It. is obvious, we think, from the early English cases, Candler v. Fuller, Willes 62, 64, and casds there cited by the court, and the note of the reporter, that at common law the arbitrator had no power over the costs of the reference, unless it were expressly given in the submission ; Burfield v. Burrford, Cro. Jac. 577. The reason assigned in the cases is that it. was matter subsequent to the submission and could not, therefore, fairly be regarded as submitted by implication. But the power to award the costs of an action, which have already accrued, seems to be implied from the submission of the action or from the submission of all controversies ; Roe v. Doe, 2 Term 614 ; 2 Pet. Ab. 254 and notes.

And it has been decided that the general power to award costs* exjmessly given by the submission, does not include the costs of the reference ; Bradley v. Farnstow, 1 Bos. & P; 34. But where it was provided in the rule of reference that costs should abide the event of the award, it was held to include the costs of the reference : Wood v. O’Kelley, 9 East 436. But upon a submission of a cause, and all matters of reference, and nothing said of costs, the arbitrators may award the costs of the cause, but not of the reference ; Keith v. Robinson, 1 B. & C. 277.

The rule of law upon this subject seems to be different in different States in this country. In Massachusetts, from an early day, it has been held and repeatedly reaffirmed that an arbitrator has no power to award costs unless expressly given in the submission ; Peters v. Pierce, 8 Mass. 398 ; Vose v. How, 13 Met. 243 ; Maynard v. Fredrick, 7 Cush. 247. This rule has been adopted in many of the other States; Gordon v. Tucker, 6 Green-leaf 247. In this last case, the case of Roe v. Doe, 2 T. 644, is doubted. See also Hawson v. Webber, 40 Maine 194. The same rule has been adopted in Clement v. Comstock, 2 Mich. 359 ; and in the English courts* under the common law proceedure act of 1854; Legge v. Young, 32 Eng. C. L. and Eq. 433.

A different rule has been adopted in Connecticut, by a divided court, on the ground of the practice in that State ; Alling v. Munson, 2 Conn. 691. And in New Hampshire a similar rule obtains; Spofford v. Spofford, 10 N. H. 254. And a similar rule seems to obtain in New York ; Strange v. Ferguson, 14 Johns. 161; Cox v. Jogger, 2 Cowen 638.

We have not been at the pains to investigate the subject farther. The rule of the common law and of the English courts at the present day, is very obviously not to allow the authority of the arbitrator to award the costs of the reference unless that power is expressly given in the submission. And the English courts hold that where the arbitrator has power, by the submission, to award the costs of reference, this does not empower him to pass conclusively upon the amount of his own fees ; Coombs in re. 4 Exch. 839 ; Fitzgerald v. Graves, 5 Taunt. 342. The English courts hold this altogether independently of the reasonableness of the sums fixed by the arbitrator for his own fees, upon the ground that no man Can be a judge in his own case, unless the power is expressly given. We think the reason and principle of the thing is in favor of the English rule upon this subject. And to the extent of not allowing the arbitrators to award the costs of the reference, unless authorized by the submission, the weight of American authority seems to he in the same direction.

It only remains to inquire whether any such authority is given the arbitrators in this case by the submission. The submision is of all matters of difference, and an express provision that “ costs shall be awarded to the parties who may succeed in said action, meaning to include all manner of action and actions, cause or causes of action,” etc., between the parties. For the purpose of giving construction to these words it is competent to look into the state of the disputes between the parties at the time of the submission. This is sufficiently apparent from the award. It consisted, on the part of the plaintiff, of a suit for flowing the plaintiff’s land, and a hill in equity for some decree connected with the same subject probably. The only positive claim made by the defendant was for an assault and battery, for which suit was then pending. The controversies between the parties then consisted of three pending suits, but not all in favor of the same party.

The provision, then, in regard to costs, in the submission, is satisfied by the arbitrators awarding the costs of the pending actions in favor of the party prevailing in the particular action. And this will fairly enough include the expense of the trial of the particular action before the arbitrator, such as witnesses and other taxable costs. This the arbitrators have done, and made their award accordingly. But it is obvious they have not, in terms, awarded anything more. If we were to conjecture what the parties probably meant, we might naturally enough conclude that they expected to have the costs of the arbitrators included in the costs of the actions. I think myself this would have'been a fair and reasonable construction of the provision in regard to the costs of the actions. And if the actions had all been decided the same way, that is* in favor of the same party, it would now be easy enough to give it that operation, as was done in Wood v. O’Kelly, 7 East 436. But this award is not of a single action, as in that case, or of different actions in favor of the same party, but in favor of different parties. There should, therefore, have been an apportionment of the fees of the arbitrators, according to the expense belonging to those decided for each party. This was not done, and it is now too late to amend the award. And we do not think the arbitrators had authority by the submission to award the payment of their own fees, except as incident to the trial of each action. They could not then direct the defendant to pay the whole of those fees. If they could do that, then they could have awarded that #the plaintiff should pay all their fees. They could at most, according to the submission* have included their own fees, while trying each particular suit, in the costs of that suit, and then left that party to pay them such proportion of their fees as he received, and were allowed him in the award as Costs in the suit in which he prevailed.

But nothing of this was done. And judging from the award merely, with reference to the subject matter, and we have üó right to go beyond this in giving Construction to a written award, we. should conclude, either that the arbitrators’ fees had been included in the costs allowed in the several suits, or that no award in regard to costs had been made, or none such as came within the powers delegated to the arbitrators by the submission. We say this in regard to that clause in the award, “ that the said Buchanan pay the costs Of this arbitration.” If that were to be understood generally as including all the costs of the arbitration, it clearly is not in conformity to our view of the just import of the submission, that costs should follow the event of the several suits submitted. But we think this clause is qualified by what follows, “ and that we allow said Morrison’s bill of costs as taxed.” This expression “ as taxed ” explains, to my mind, how the arbitrators, in fact, failed to make ahy award in regard to their own fees. They allowed the costs of the parties, as taxed, in the several actions, but this taxation did not include their fees, and on that account probably it occurred that no specific award was made on the subject. There is no doubt an equity that the plaintiff should recover just about that amount of fees, which he paid, above what the defendant paid. For whatever part of the fees are incurred in the trial of the case against the plaintiff should have been paid by the defendant, and taxed in his costs, and deducted from the plaintiff’s costs, and he should have had a final award for the balance. But we have not been able to disj cover any legal process by which we could come at this result, in the present imperfect state of the award, and, as we have said, it is now too late to amend it. It seems to us that as no legal award was made in regard to the arbitrators’ fees, no recovery can be had in regard to them.

Judgment reversed and case remandeds