Had the two arbitrators a right to act under the submission, without the attendance of the third 1 If two had the right, then their power was revoked, and the act of the defendant, which was alleged to be the revocation of the submission, was in fact as it is stated to be in the pleadings, and the objection of variance, or defect of proof, as it might more properly be called, is groundless. The plaintiff was not under the necessity to set forth, in assigning breaches, the instrument by which the submission was disannulled and revoked, in hcec verba, but only to allege the fact of revocation. The proof offered was sufficient to support this allegation, if the two arbitrators to whom it was addressed had the power to proceed to the hearing.
The most favorable construction that the defendant can ask is, to have the submission considered as made to the three arbitrators named in the bond, with power to any two to make an award. He obligated himself to abide by their joint award, or that of any two of them. It seems to be settled that where the submission is to three, with power to two to make the award, two have power to hear, where the third is noticed and refuses to attend, or is wilfully absent. (Barnes’ Notes, 57. 6 Johns. R. 39. Kyd on Awards, 106, 7.) It appeared by the defendant’s letter that Jewett absolutely refused to act as an arbitrator; he was therefore wilfully absent. His absence, under such circumstances, did not prevent the other two from proceeding; their power the defendant revoked, and thereby subjected himself to this action.
Motion for a new trial denied.