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 ¹⁴⁴ 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,