The award made by the appraisers was as follows:
"AWARD.
"To the parties in interest:
"We have carefully examined the premises and remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value and the loss and damage to be as follows:
Sound value. Loss. "1st item Household furniture . . . . . $1000 $756.29 "Total. Sound Value and Loss . . . . . . 1000 756.29
"Witness our hands this 21st day of September, 1909.
"EDWIN DRAPER, "CHAS. A. COOLEY, "Appraisers."
The exceptions are: "First. Exception to the ruling of the court denying the introduction of a certain written award of appraisers, as appears from pages 48-61 of said transcript, the said exception to the ruling of said court being noted on page 61.
"Second. Exception to the decision of the court granting the defendant's motion for a nonsuit, on the ground that the evidence was not sufficient to sustain the second count of plaintiff's declaration in said case, as appears on page 82 of said transcript, and which fully appears from said transcript of testimony, which said transcript of testimony contains all the testimony taken during the trial of said case."
The award should have been admitted in evidence.
In Early v. Providence Washington Ins. Co.,31 R.I. 225, 230, the court, speaking of the attempt of the plaintiff in that case to impeach the award by showing (1) that the *Page 331 value of certain goods, and the plaintiff's loss thereon, were not considered in ascertaining the amount of the award because of an erroneous decision by the appraisers that certain goods were not covered by the policy, and (2) by showing that the umpire and the appraisers chosen by the defendant were not competent and disinterested, said: "The general rule is that this cannot be done in an action at law in jurisdictions where the distinction between law and equity is still maintained. Georgia Home Ins.Co., v. Kline Co., 114 Ala. 366; Kaplan v. Niagara FireIns. Co., 73 N.J.L. 780; Robertson et al. v. Scottish Union Nat. Ins. Co., 68 Fed. 173; Levin v. Northwestern Nat. Ins.Co., 146 Fed. 76.
"Thus in Georgia Home Ins. Co. v. Kline Co., supra, the plaintiff brought an action under a fire insurance policy containing the same arbitration agreement, with a few minor verbal changes, found in the Rhode Island standard form. The defendant pleaded an award, to which the plaintiff replied that the arbitrators wrongfully refused to consider a large amount of goods covered by the policy. And it was held, in sustaining the defendant's demurrer to the reply, that the award could not be contradicted in a court of law, because (p. 372) `the submission, on its face, submitted and carried before the arbitrators, the matter of the entire loss, and the award shows they passed upon, and adjudicated the entire loss.'
"In Kaplan v. Niagara Fire Ins. Co., supra, where it appeared, in an action on a fire policy containing an arbitration agreement identical in all ways with the clauses in the Rhode Island form, that an award had been made, it was held that evidence introduced for the purpose of showing that the appraisers omitted to take into account certain articles alleged to have been covered by the policy and destroyed, was properly excluded, because (p. 789): `Their award cannot be impeached atlaw for erroneous judgment upon facts, nor can it be for the omission of items of account which are within the terms of the submission.' *Page 332
"Robertson et al. v. Scottish Union Nat. Ins. Co.,supra, was an action on a fire policy containing the arbitration clauses quoted above, in which an award had been made. And it was held that the plaintiff could not prove that the loss sustained was greater than the amount found by the appraisers, nor that the appraiser selected by the insurer, and the umpire, were not competent and not disinterested, because, where the distinction between law and equity still prevails, an award can not be attacked in an action at law for misconduct of the appraisers, and that, therefore (p. 175): `in this forum (law side of the court) the award is binding on the parties, and no recovery can be had in this action beyond the amount therein ascertained.'
"So also in Levin v. Northwestern Nat. Ins. Co., supra, it was held that the defendant's motion to strike out the plaintiff's reply, setting up fraud on the part of the appraisers appointed under an arbitration clause identical with the Rhode Island form should be granted, because, where the distinction between law and equity is still preserved, the award cannot be impeached in a court of law for misconduct of the arbitrators.
"These cases seem conclusive of the case at bar. In this case, as in them, the plaintiff avers that an award has been made which on its face determines the entire liability of the defendant under the policy; and in this case, as in them, the plaintiff seeks to recover, in an action at law, a sum greater than that awarded, and to impeach the award because of alleged misconduct on the part of the appraisers in excluding certain items while estimating the loss, and because of incompetency. This, as the above authorities show, he can not do in this form of action."
That case is decisive of the case now before us. The award cannot be impeached in a court of law any more successfully by the defendant than by the plaintiff. The court certainly cannot accomplish the invalidation of the award any more effectively by declaring it invalid when offered in evidence, and excluding it, than by passing upon *Page 333 it and declaring it invalid when in evidence. The plaintiff having complied with the provisions of the policy in regard to an appraisal and the appraisal having been made, the loss became payable by the terms of the policy "sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required." If the defendant desired to impeach the award it could have brought its suit in equity to do so upon any grounds it wished to urge. Not having done this it cannot accomplish its purpose in a court of law, but must abide by the award.
The plaintiff's exceptions should be sustained.