I agree with the trial chancellor that the answer to the bill of complaint filed on behalf of defendant, National Fuel Company, contains no allegations sufficient to meet the allegations of the bill and its prayer to ignore the award of arbiters, consider the cause on its merits and enter a decree in favor of the complainant. I think that the course pursued in submitting the cause to a jury on an issue out of chancery and entering a decretal judgment for the amount of the jury's verdict in favor of complainant was free from error.
Supposedly arbitration is an impartial procedure, and arbiters are free from prejudice. Sturges on Commercial Arbitrations and awards, page 371; 2 Rawle C. L., page 372, paragraph 20. The answer of the coal company virtually *Page 402 admits that the arbiter named by it, although not carried on its payroll, was a mining engineer frequently in its employ and apparently with pre-conceived opinions as to the feasibility and adequacy of their mining development. The two chosen arbiters having failed to reach a conclusion, picked a third who did not sit with them in an effort to reach a joint determination, but to whom the other two arbiters submitted their respective contentions, and the third simply cast the deciding vote between two contending representatives of the two sides to the controversy. I think this is not arbitration. Instead of being a device to eliminate controversies, to my mind, it would multiply and magnify contentions between the contracting parties.
There is conflict in the cases on the question of whether jurisdiction can be conferred upon arbiters by consent, or whether their lack of jurisdiction must not be raised in the proceedings objected to before the award. The contention is made here that after the award, it comes too late to contend that the proceeding fundamentally differed from an arbitration. I believe that the sounder view applicable to what is termed common law arbitration, which this is, is that which likens it to a court's jurisdiction of the subject matter. There are many ways in which arbiters can obviously exceed their jurisdiction. For example, would they have the right, as would a trial chancellor, to refer a controversy of fact to a jury of twelve? Should it not logically follow that, in the absence of a specific agreement to submit the matters in controversy to a different kind of tribunal proceeding in a different manner, the well established general rules governing arbitration and the qualifications of arbiters should be followed? Should this be so, then I do not think that the lack of objection can, by implication, confer jurisdiction to hear and decide the matters in controversy in any different way. Of course, an express agreement might well lead to a different result.
Neither do I think the award responsive to the questions submitted. The wording of the award is "the lessor *Page 403 has been adequately compensated for the coal removed * * *." This was already known to be a fact. The question to be decided was whether all minable coal had been removed. This was not decided.
I have not undertaken to go into detail, but have stated what I think are, under the allegations of the bill of complaint and the admissions of the answer, uncontroverted facts. I think the bill constituted an adequate attack upon the award and that the answer filed was insufficient. I see no reason to set aside the jury's finding nor the trial chancellor's decretal judgment.