It is impossible to maintain this award. It cannot be supported either as an award of arbitrators or as the award of an umpire.
In the first place, the parties did not agree to submit the subject matter of difference between them to the determination of an umpire, in case of a failure to agree by the arbitrators named in the submission. An umpire is a person whom two arbitrators, appointed and duly authorized by parties, select to decide the matter in controversy, concerning which the arbitrators are unable to agree. His province is to determine the issue submitted to the arbitrators on which they have failed to agree, and to make an award thereon which is his sole award. Neither of the original arbitrators is required to join in the award in order to make it valid and binding on the parties. In the absence of any agreement or assent by the parties to the controversy, disoensing with a full hearing by the umpire, it is his duty to hear the whole case, and to make a distinct and independent award thereon, as the result of his judgment. He stand's in fact in the same situation as a sole arbitrator, and he is bound to hear and determine the case in like manner as if it had been originally submitted to his determination. Watson on Arbit. (3d ed.) 100. M’Kinstry v. Solomons, 2 Johns. 57. S. C. 13 Johns. 27. Bates v. Cooke, 9 B. & C. 407. Salkeld v. Slater, 12 Ad. & El. 767. Passmore v. Pettit, 4 Dall. 271.
By the terms of the submission in the present case, it is clear that the parties did not intend 1hat the arbitrators whom they *385appointed should select an umpire. The agreement is explicit that in case of disagreement by the arbitrators they should appoint a third person, and that the award of the majority of the three should be final. This excludes the power of appointing an umpire, whose sole award was to be valid and binding, and necessarily implies that the third person to be selected in case of disagreement was to be a third arbitrator, whose power is expressly limited to making an award in conjunction with the other two, or one of them.
There can be no doubt, therefore, that the arbitrators mistook their authority in appointing a third person to act as umpire. No such power was delegated to them by the submission. But this error might not have been fatal to the award, if it had appeared that the third person whom the arbitrators selected as umpire had in fact acted with them in hearing and deciding the case, exercising a free and independent judgment, and uniting with one of them in the.award. It appears, however, that he entirely misunderstood the authority which was vested in him by the appointment under which he acted, and that he did not take on himself the performance of the functions'either of an arbitrator or an umpire. In either capacity, it was his clear duty to hear the evidence adduced by both parties, and their respective allegations and arguments, and thereupon, acting fairly and impartially, to form his own independent judgment on the case before him. This he did not do. On one of the main issues involved in the controversy between the parties which formed the subject matter of the submission, it is shown that he studiously refrained from acting on his own opinion of the merits of the case. His own statement puts this fact beyond dispute. He says that he did not consider “ that by the terms of the agreement by wrhich the parties submitted this case to him as umpire, he has himself any authority to fix the amount of damage to be awarded, but that his duty is only, after a full hearing and due consideration, of the case, to determine which of the two referees have fixed upon the sum nearest, in his judgment, to justice and equity.” And then, after assigning reasons for his conclusion, Le adds: “ The undersigned is *386therefore compelled to unite with the referee selected by the plaintiff, who has fixed the amount of damages to be awarded at the sum of three thousand dollars.” From this language it is apparent that he mistook the capacity in which he was alone authorized to act under the submission, and also that he entirely misconceived the duty which devolved on him, acting either as an umpire or as an arbitrator. It was in the latter capacity only that he had authority to act. But he did not exercise the authority. Not only is it clear that the amount of damages awarded is not the sum which he would have given, if he had supposed he was authorized to allow a different amount, but it is also manifest that he did not enter into consultation with the other arbitrators concerning the facts of the case, nor permit himself to exercise his own independent judgment, either in consulting with them or in making up his award. Besides; the inference is unavoidable, from his statement, that he did not suppose that he was authorized to enter into a general examination of all the facts involved in the issue, and to form a judgment on the question of the liability of the defendants to pay any damages to the plaintiff’s testator, but that he felt constrained by the terms of his appointment to confine himself to the amount of damages which the plaintiff was entitled to recover.
The insuperable difficulty, therefore, in the way of maintaining an action on this award, is not only that it appears that the third person selected by the parties exceeded his authority under the submission by acting as umpire, but that he wholly failed properly to discharge the functions of arbitrator. The award cannot be regarded as being valid on the ground that he acted in the latter capacity, because he did not consult with the other two arbitrators on the whole case, nor did he pass on all the questions at issue between the parties, or exercise his own independent judgment on the matter concerning which he undertook to make an award. It is impossible for any one now to say what his opinion or judgment would have been if he had acted as arbitrator, and had duly considered the whole case in consultation with the other arbitrators.
*387It is true that he says he should have been willing to allow a greater sum in damages than is given by the award, if the arbitrator appointed by the plaintiff had fixed on a higher sum. But this affords no argument in support of the award, because it cannot now be known that such would have been his opinion and judgment if he had formed it fairly and impartially, after due deliberation and consultation with the other two arbitrators, with both of whom he was authorized and bound to act in arriving at a conclusion on the case submitted.
Judgment for the defendants.