Evidently neither party contemplated that the four appraisers aside from Mr. Wheeler should be disinterested. The defendant selected two partisans; the plaintiff selected one; neither is, therefore, in a position to claim that the other did not select impartial appraisers. The five appraisers were to act as a board, which implies that the full board was to act, having the benefit of the knowledge, arguments and suggestions of each member. I think Mr. Whitney and the defendant’s appraisers prevented the board, as such, from making the appraisal contemplated by the stipulation. They precluded a consideration and discussion of the matters by the board as such. I concur in the opinion of Mr. Justice Borst that the arbitrators did not act as a board according to the true spirit of the stipulation. The stipulation provides that the appraisers may call upon either party for any data, copies of contracts or documents which they may require in making the appraisal. If the appraisers were simply to determine the amount of physical damage done by the fire upon Township 19, it is difficult to see what contracts they would require from the parties. After the fire the plaintiff had contracted with the Kelloggs by which they were to take, on certain conditions, certain of the damaged timber. It was the right and the duty of the appraisers to take that contract into consideration. If the plaintiff was receiving for the timber, after the fire, all it was worth before the fire, that fact shows that the damages could not be large. I think the stipulation meant that the appraisers were not to determine *368the question of liability but were to fix the damages, leaving the question of liability to be determined by the evidence, and if the defendant was found liable the decision of the appraisers as to the amount would furnish the measure of damages. It seems to me, therefore, that the Kellogg contract was a proper matter for consideration by the commission.
Smith, P. J., and Lyon, J., concurred.
Orders appealed from affirmed, with ten dollars costs and disbursements.