delivered the opinion of the ccurt on a-motion for a rehearing.
This is a motion for a rehearing. It is accompanied with reasons, and counsel for respondents have filed, to support, these reasons, a somewhat elaborate brief.
The point decided by this court was, that an award of arbitrators will not be set aside because it is against the evidence, and that it was not error in the Circuit Court to-refuse to look into the question as to whether dr not there was any evidence to support the award.
In the opinion filed in the cause, some leading English cases, and also decisions of the Supreme Court of this State, *459were cited to show that the English rule has been followed from the first in Missouri, and that, on motion to vacate an award, the court will not enter into the merits of the case-itself, and that, where the award is sufficient, in the absence of a mistake in fact or law, apparent on the face of the-record, nothing but irregularity of the arbitrators in their proceedings, corruption, partiality, or misbehavior on their part, or fraud or concealment of evidence by the parties, will warrant a court in setting aside an award. Counsel now cité authorities which they say have been overlooked by this court.
1. In the first place, they call our attention to the following provision of law in this State. Wag. Stat., ch. 8, sec. 23 r “ Nothing contained in this act shall impair, diminish, or in any way affect the authority of a court of equity over the-awards of arbitrators, on the parties thereto.”
We are wholly at a loss to see why counsel supposed that this clause of the statute had escaped the attention of the-court. There is nothing whatever in the point decided, or in the reasoning of this court, from which it can be gathered that equity in Missouri has not the same jurisdiction, in case-of an award, as has been asserted for it by all the great chancellors of England and America. But that equity will set aside an award purely because it is not supported-by the evidence is what is uniformly denied by every text-writer and every authority, elementary or otherwise, to-which we have access. As the case before us turns on a motion to vacate an award at law, and is not a proceeding-in equity, and as the equity powers of the court below have-not been invoked by respondent, it is not at all necessary-for the decision of this case to determine what equity would do if its aid was asked, although it is quite plain and settled, if anything at all is settled, that it could grant no relief.
The authorities in our own State which are now called' to our attention seem to be in no respect opposed either-*460to the point decided by us in the case at bar, or to the reasoning by which that decision is supported. We will notice these cases one by one.
Hyeronimus v. Allison, 52 Mo. 102. In this case the -court simply decides that, where the miiid of an arbitrator us tainted with partiality when chosen, and he. conceals the fact, it is a-gross fraud, for which 'equity will set aside the award, and which, under our statute, is good as a defense at law.
The learned judge delivering the opinion of the court, ’in the course of his reasoning, says that “ the strong marks •of legislative solicitude that the arm of a court of equity in this regard should not be shortened, manifested in section .23 of the act referred to, make some authorities, which might otherwise be pertinent as showing, under different •statutory regulations, a preclusion of equitable interference in cases of this sort, have no applicability when a statute such as ours is in force.”
It is’nowhere said or intimated, however, that our statute authorizes courts of equity to go behind an honest award to look into the evidence on which it is based.
Squires v. Anderson, 54 Mo. 193, is the next case which we áre said to have overlooked. But, inasmuch as, in the language of the learned judge delivering that opinion, “the •only question presented for the consideration of the court is whether the arbitrators, under the submission, had the power or right to estimate as permanent improvements the increased value of grapevines growing on the farm,” and as no question of going into matters not submitted arises in the case at bar, we do not see why, in deciding the question before us, we should have particularly regarded this case, nor why it is cited to us now.
The next case is Tucker v. Allen, 47 Mo. 488. In this case the award was not attested till after suit, and the arbitrators were not sworn, that formality being waived by the parties. The court decides that these informalities did not *461vitiate the award, and that it is for the court to determine, as a matter of law, what facts are requisite to constitute a valid award.
We again fail to see any principle decided which we have neglected to recognize, or which was material to the decision of the cause before us.
We are next asked to look at Shores v. Bowen, 44 Mo. 396. We have done so, and see that the award was there vacated, because only two of the three arbitrators heard any of the evidence. The court says that the statute is peremptory that “all the arbitrators must meet together and hear all the proofs and allegations of the parties.” We are at a. loss to conceive how this decision affects the case before us. There is no pretense of any such misconduct here.
The next case cited is Field v. Oliver, 43 Mo. 200. For what purpose we are referred to this case we cannot imagine. Anything less in point could not be named. It decides :
1. That it is irregular to withdraw an award from the-, clerk’s office to affix an attestation ; and,
2. That where an insolvent plaintiff asks judgment on an. award, and is a debtor to the defendant in a liquidated amount, not included in the submission and award, the. chancellor has jurisdiction to decree a set-off, or other proper relief.
The last Missouri decision which we are said to have overlooked is Shelbina Hotel Association v. Parker, 58 Mo. 324. There the plaintiff sought to recover $172 on account of a mistake made by arbitrators. The plaintiff was made, aware of the mistake by the arbitrators themselves, soon after they signed the award ; nevertheless, he permitted it,, without objection, to be confirmed by the court; and, these facts appearing on the face of the petition, the Supreme Court decides that it did not contain facts sufficient to constitute a cause of action.
We see no reason why we should be referred to these eases. They do nottouch upon — certainly in no way impair— *462the doctrine uniformly maintained in this State, and asserted in numerous cases cited by us from our reports, that incorrect conclusions of fact, or errors in law, are not enough to vacate an award, and that the.Circuit Court cannot interfere .unless there be partiality, corruption, gross miscalculation in a matter of figures, or decision in a matter not submitted.
“The question,” says Judge Leonard, in Bridgman v. Bridgman, 23 Mo. 272, “is, not whether the arbitrators, who are the final judges both of the law and the fact, selected by the parties themselves, have erred in their judgment in respect to either, but whether they have been guilty of partiality or corruption, or any other misconduct prejudicial to the rights of the parties, or have failed to make a final, definite, or mutual award, or whether their award was procured by fraud or undue means.”
We are also referred to Hall v. Hind, 12 Man. & G. 851. That case was known to the writer, and apparently was in his mind when he stated, in the opinion filed herein, that awards have been set aside for gross miscalculation in figures. That was a plain case of mistake. It was admitted •on the part of Hall that £143 was due from him to Hinds ; but the latter claimed a larger sum before the arbitrators, ■and, after an investigation of the matter in difference, the arbitrators found that a still further sum of £75 was due from Hall. Instead, however, of adding these two sums together, and directing Hall to pay the aggregate sum to Hinds, which would have been £218, the arbitrators, by mistake, deducted the £75 from the £143, and, by a still further mistake, directed by their award that Hinds should pay the difference to Hall. It was a manifest mistake of •calculation, and was corrected by the court, and falls within the exceptions to the general rule which we expressly noted. ‘The court, in this, merely amended the award to make it •conform to the manifest intention of the arbitrators.
So in another case, cited by. Kyd as having been tried in the King’s Bench at Hilary term, 1799, the arbitrators *463'distributed personal property amongst seven grandchildren, which, by the statute of distribution, belonged in equal moieties to the living daughter and five children of a -deceased daughter.
The court swore the arbitrators as to whether they intended to follow the law, and, learning that they did not, said the award must not be disturbed; that where the •arbitrators, meaning to follow the law, mistake, it is reason 'to set aside the award, but where, knowing what the law is, •or leaving it entirely out of consideration, they make what they conceive an equitable distribution, it is no objection "that it is manifestly against the law. Ainsley v. Goff, Kyd, 354.
Lord Thurlow says, in Rice v. William, Brown, 163, if an award remained open to exception, it would seem to be rather a reference than an award.
It was intended in this matter that the whole matter •should be referred to arbitrators, to the exclusion of the •court.
And Lord Loughborough, in Morgan v. Mather, 2 Ves. jr. 22, said that if parties litigant consent to substitute arbitrators for a master, they might; but, if they consented to refer the whole matter to judges of their own, he could .not correct the error of their judgmeift on the facts.
A Pennsylvania case is cited by counsel for appellants, but they do not seem to advert to the fact that no case in Pennsylvania can be in point on this question of the power «of the court to inquire as to whether there is evidence to support an award, because of the peculiarity of the Penn•sylvania statute.
Judge McKean, in Williams v. Craig, 1 Dall. 338, assimilates an award to the verdict of a jury, as to power to set it aside, but gives as his reason that the Pennsylvania act requires that, to make an award valid, it must be approved by the court. So Judge Washington, in Hunt v. Hunt — . -decided in United States Circuit Court of District of Penn*464sylvania, in 1803 — says an award will be set aside for manifest error of law or fact, in Pennsylvania, but says the-English rule does not apply there, because the award must be approved by the court.
So that, if appellants complain that this is dura lex, we-can only reply, sed lex. As is said by Chancellor Kent, in Underhill v. Van Cortlandt, 2 Johns. (N. Y.) Ch. 367, “ it is unprecedented to go into the merits of an award ; the-reasonableness or unreasonableness of it does not affect its validity, so that there was no misbehavior or corruption in the arbitrators.”
The law on the subject is fully examined in that case. It is too well settled, both at home and abroad, in fact, to-admit of argument.
2. Appellants, however, complain that we overlooked one-main ground of error; that the award should have been set aside for misbehavior in the arbitrators, in this, that they heard the argument of plaintiffs in the absence of defendants. It is asserted in the brief of counsel, to quote their language : “It was certainly partiality — not moral or corrupt partiality, but legal. It is no longer needful to resort to a proceeding in equity to upset an injustice of this, description. These propositions are well considered and well settled in Knowlton v. Mickles, 29 Barb. 465, and in Walker v. Frobisher, 6 Ves. jr. 70.”
Let us see whether these assertions are well considered.. In the case at bar, it. appears by the record that defendant had due notice to be present at the argument of the case ;■ that they declined to employ counsel, and did not go themselves. One of the defendants swears that he did not go. because he went to a funeral, and that he thinks his-co-defendant had the rheumatism. Under the circumstances; we do not see that the arbitrators did wrong in proceeding” to hear the argument on behalf of the plaintiffs, who did attend.
But -what becomes of the statement that it is authorita*465tively settled’by .the two cases cited above that such action on the part of the arbitrators is ground for setting aside the award? They are both cases, not of hearing argument after notice, but of taking testimony ex parte, without*any notice to the opposite side.
In Knowlton v. Mickles the dispute was about damages eaüsed by a dam. The arbitrators .proceeded to examine the premises in dispute, in the absence of the defendant, attended by the plaintiff in person, and listened, then and there, to the statements of at least three persons as to their knowledge, of the damage and its cause, and all this without the knowledge of, and in the absence of, defendant. On the authority of Walker v. Frobisher the award was vacated.
In Walker v. Frobisher the lord chancellor says that “the arbitrator had examined different witnésses at different times, in the presence of the parties, and recommended them not to produce any more witnesses. To that recommendation they accede. After that he hears three persons, and takes notes of what they said. It does not appear that he had any communication with other parties,, and the arbitrator swears it had no. effect on his award. I believe him; he is a most respectable man. But a judge must not take upon himself to say whether evidence improperly admitted had no effect upon his mind. The award may have done perfect justice, but, on general principles, it cannot be supported.” The chancellor also says that the fact of .the arbitrator taking notes at the time showed that it was not a question of- mere conversations about the matter in dispute. There is no parallel at all between these two cases and the one before us. Tue misbehavior was palpable, and no court could hesitate to set aside the award. There, is no pretense’that the arbitrators in the present cáse were partial, orprejudiced, or consciously unjust. But it is now claimed' that the fact that the evidence.does not support the . verdict is proof of partiality, in the sense in .which, the word-*466is used as a ground for vacating an award: But this is not ¡the law.
We have gone somewhat at length into this matter because we Sre sensible of the apparent hardship of the rule in this case. There is nothing whatever in the reasons urged for a rehearing. To use the language of the .learned judge in Lee v. Patillo, 4 Leigh, 443 : “ If there be anything settled in the law it 'seems to be this: that, to set aside an award, you must show either a mistake apparent on its face, or misbehavior in the arbitrators. The court may be fully satisfied that the award has operated injustice, yet, if the mistake be not upon its face, and there be no proof of partiality or corruption, it will not touch it.’.’
The application for a rehearing is denied.
The other judges concur.