Roloson v. Carson

Eccleston, J., delivered the opinion of this court. The questions of most importance in the cause are those which relate to the award, we therefore intend directing our attention to them first; although they are presented by the plaintiff’s prayers, numbered from two to six, inclusive, which are to be found in the third and last bill of exceptions. In England, when an award made under a reference in pais is sued upon, or is used in defence, in a court of law, it cannot be impeached for matters dehors the award. And when the injured party wishes to relieve himself from such an instrument, by proof aliunde, he must file a bill in equity to set it aside.

In the suit at law he is confined to errors apparent on the face of the award. Not only is it so in England, but like ²¹⁹ wise in many of the States of this Union, as will appear from the authorities referred to by the counsel for the appellee under their first point. Portions of the plaintiff’s evidence intended to impeach the validity of the award should have been rejected in the court below, if objected to as inadmissible, because dehors the award. But what those portions are need not now be inquired into; because, even considering the evidence as in the cause, still we think the prayers of the plaintiff were rightfully refused by the court.

And this renders it unnecessary to ascertain to what extent, if any, the English rule in regard to the impeachment of awards, similar to the present, has been altered or modified in Maryland. The award in controversy is in the following language: “ The undersigned, Samuel Harris and J. Nant, having been appointed arbitrators by Frederick Roloson of the one part, and David Carson, contractor, of the other part, both of the city of Baltimore, to settle a matter of difference between them respecting the building of an addition to said F. Roloson’s warehouse, situate on the west side of N. Paca, between Fayette and Lexington streets, which building or addition to said house, when near being finished and taken possession of by said Roloson, fell down in part, from the fact that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage, showing very plainly that the wall had not been well built. The arbitrators named above, at their second meeting, called in James Curley, and after hearing all the statements of both parties respecting the cause, &c., also examined, under oath, five witnesses called by Mr. Roloson, some of whom had worked upon the building, and others frequently saw the work while in progress; and all of the five witnesses testified that said Carson had paid proper attention to the work from first to last. We therefore, as arbitrators, say, after hearing all the evidence produced in the case, and from our own observation, after a careful examination of the building, that D. Carson is not in any way in fault ²²⁰ and not liable for any part of the damage, it being one of those things which human wisdom could not foresee.

Samuel Harris, John Nant, James Curley.” From this we understand the arbitrators as intending to say, in effect, that the wall which fell was to remain, and was supposed by all parties to be good and sufficient to support all the weight for which it was intended; that the external appearance of it indicated no unsoundness or imperfection, but by the fall the internal defectiveness of the ■ structure became manifest, although previously concealed from human observation; that the damage resulted from such concealed defect which caused •the falling of the wall; and as that wall, by agreement, was not to be taken down, but to stand as it was, the arbitrators came to the conclusion that Carson was not in fault and not liable for the damage. Whether the old wall, by contract, was to stand, and whether ■its external appearance exhibited such a state of soundness as to indicate its entire sufficiency to sustain the weight designed to be placed upon it, disclosing no evidence of any internal defect whatever, the parties supposing it good and sufficient for what it was intended; and whether the failing of the wall was caused by its concealed defect, and not a want of proper care or skill, in the manner of placing the iron columns upon it,swere matters in regard to which the conclusions of the arbitrators were formed from the evidence, in connection with their own personal observation. From the nature and character of the circumstances presented for consideration and decision by the referees, if they committed errors or mistakes in their conclusions upon the facts, they were mere errors of judgment, and not gross mistakes which could defeat the award. It is not every error or mistake which can avail for such a purpose.

On the contrary, by a long course of decisions, courts have manifested a strong inclination to sustain the judgments pronounced by arbitrators. Mistakes committed by them in drawing incorrect inferences, or forming erroneous judgments or conclusions, from facts, will not vitiate their ²²¹ awards; but when mistakes are relied upon for that purpose they must be gross and manifest. In Knox vs. Symmonds, 1 Ves., Jr., 369, where the court, from the character of the proceeding, were at liberty to look, not only to the award, but also to the evidence aliunde, Lord Thurlow says: “ To induce the court to interfere there must be something more than an error of judgment, such as corruption in the arbitrators, or gross mistake, either apparent on the face of the award or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened he should have made a different award.” This remark is quoted with approbation in Burchell vs. Marsh, et al., 17 How., 344 . And in that case the Supreme Court also say: “Courts should be careful to avoid a wrong use of the word cmistake,’ and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards.” From its peculiar applicability to the subject before us we are induced to make a quotation from the opinion of Ch.

Justice Shaw, in Boston Water Power Co. vs. Gray, 6 Metcalf, 181, where he says: “The mistake or accident, therefore, must be of some fact which deceived and misled the arbitrators, and not a mistake in drawing conclusions of fact from evidence or observation.” That mistakes which are but errors of judgment will not invalidate awards, may be seen by reference to Cromwell vs. Owings, 6 H. & J., 10 , and Ebert’s Exc’rs vs. Ebert’s Adm’rs, 5 Md. Rep., 353. And in delivering the opinion of the court in Goldsmith vs. Tilly, 1 H. & J., 364 , Ch. J. Chase says: “The court will not unravel the matter and examine into the justice and reasonableness of what is awarded. ’ ’ Without meaning to say whether we should have drawn the conclusions which the referees did, we feel no hesitation in saying, that after looking, not only to the award, but also to the proof in the cause, we see no just reason for supposing they did not believe they were doing what justice demanded of them. And in Burchell vs. Marsh, et al., where the award was open to a full examination, under a bill in equity, fded ²²² for the purpose of setting it aside, the court use this language: “ If the award is within the submission and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either of law or fact.

A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.” The plaintiff’s second prayer, but the first stated in the record, is: “If the jury find from the evidence that the award read in evidence was made, written and subscribed by the arbitrators, at a meeting at which plaintiff did not attend and of which no notice was given to him, the plaintiff, then the said award is no bar to a recovery in this case, unless the juiy are further satisfied from the evidence that the said award, after being notified to the plaintiff, was acquiesced in and assented to by him.” If the law of this prayer is coiTect, then an award is void, unless ratified after notice of it is given, provided the party opposed to it is not present at, or notified of, the final meeting of the arbitrators, held simply for the purpose of making their decision, writing out and signing their award, although they may have previously heard all the allegations of the parties and examined all the evidence. When jurors retire to their chamber for the purpose of forming a verdict the parties are excluded, so that there may be a free and unbiassed deliberation as to what the verdict ought to be. Why have not arbitrators the same privilege of secret consultation and interchange of views, in regard to their final decision of the matters submitted to them? Impartial justice requires it should beso.

If then arbitrators must be allowed the privilege of consultation, in private, for the purpose of making their award, what possible benefit