I find the following facts, which I think ought to be inferred from the facts found by the court and stated in the case: *Page 29
1. Sanborn, the referee chosen by the plaintiff, acted fraudulently and corruptly in the interest of the plaintiff. The other two, constituting a majority of the board, acted honestly, and prevented the fraud of Sanborn from having any effect. Neither Plummer nor Sanders suffered from it. I do not find Plummer implicated in the fraud.
2. The conduct of Clark Tilton, in putting their hypothetical case to the two accountants, and afterwards to Pitman, if an irregularity at all, was very slight, and produced no injury to either party.
3. The conduct of Clark Tilton, in examining the surveyor after the hearing, was an irregularity, but done in good faith, productive of wrong to neither party, and not a gross irregularity.
4. The majority of the board of referees, with the knowledge of Sanborn, and while the report was yet under their control, corrected the award so as to do away the effect of the fraud of Sanborn, and without injustice to either party.
5. The deed was delivered to Sanders and the note to Plummer without sufficient authority, but in good faith and without any objection by either; but I do not find such opportunity for deliberation that the plaintiff ought to be held to have ratified the transaction either as against the defendant or the bank, which ought to be affected by all the knowledge which Clark had.
6. Sanders had not reason to believe that the was entitled to hold his deed until he had made his note bankable, or paid it as he agreed to.
In Herrick v. Blair, 1 Johns. Ch. 101, — "Arbitrators, after a witness had been sworn, and they were left alone to deliberate on their award, called the witness again, and, without the knowledge of the parties, examined him as to certain matters material to the controversy, of which he had given testimony before, and about which the arbitrators differed as to what he testified on the former hearing. An injunction to stay proceedings on the arbitration bond, on the ground of the alleged irregularity, was refused." KENT, Ch. "There was nothing done in this case by the arbitrators from which misconduct can be inferred. They only called a witness before them, who had already been examined in the presence of the parties, to explain his testimony, concerning, which the arbitrators differed. It is not alleged, nor is it to be inferred, that the witness deposed differently as to any fact from what he meant to have testified, and to have been understood, on the first examination. The case does not come up to that of Walker v. Frobisher, 6 Ves. 70, for there the arbitrator, after he had told the parties that the hearing was closed, and had dismissed them, examined three more persons on the part of the defendant, and when no person was present on the part of the plaintiff. This was unfair, partial, and a gross misconduct, and contrary to all the principles of a just proceeding. There is no analogy between that case and this; and to interfere and set aside the award upon an irregularity (even admitting it to be one) so slight and immaterial as the one now set up, would be contrary to the general doctrine of the court in respect to awards. The uniform language of the cases is, that an award cannot be impeached but for corruption, partiality, or *Page 30 gross misbehavior in the arbitrators, or for some palpable mistake of the law or of fact. The arbitrators are judges of the parties' own choosing; their proceedings and award are treated with great liberality, and even a mistake upon a doubtful point often will not open a award."
Where referees, after a hearing of the parties, receive and act upon the declarations of one of the parties, or of third persons made without the knowledge of the other party, their report will be set aside on the application of the party injured by such proceedings. Bassett v. Harkness,9 N.H. 164.
In the above cited case, the award was opened and raised from about four hundred dollars to one thousand dollars on the ex parte statements suggested. "It is a maxim of the courts, both of law and equity, never to raise a presumption for the sake of overturning an award; but, on the contrary, to make every reasonable intendment in its support." FOWLER, J., in Piersons v. Hobbes, 33 N.H. 31. "A court of equity will set aside an award of arbitrators whenever such manifest and palpable injustice is done as to show fraud, misconduct, or evident mistake on the part of the arbitrators." Rand v. Redington, 13 N.H. 72; Tracy v. Herrick, 25 N.H. 381. "An award will not be set aside for subtle and technical exceptions; and if the court are satisfied that the award has been fairly made, they will endeavor to maintain it, so far as may be, and all matters connected with it will receive a fair and liberal construction." Ib.
The result of these principles of law, applied to the case in hand, is, that the award must stand. But it does not follow that therefore the further transaction of the delivery of the deed and note must stand. Certainly, the plaintiff was not obliged to waive his right to hold on to his deed until the note had either been paid or made bankable. The award was made May 3; the parties were notified May 7 or 8; and the bill was filed May 15. We cannot see that this was an unreasonable delay, or an unreasonable time to occupy in ascertaining his rights and preparing to assert them. We think, therefore, that at present the deed of Plummer to Sanders cannot stand, and the mortgage of Sanders must fall with it.
But the mortgage of Sanders to the bank is good for his half of the property, and by means of it Sanders has so far fulfilled his part of the contract as to discharge the existing mortgage, of which discharge the plaintiff has derived the benefit, to the extent of his interest. If the plaintiff, therefore, is permitted to repudiate, now the deed and contract he must restore what he has received from the part execution of the contract. He must surrender the note, pay the amount awarded, which has been endorsed upon it, pay into the Savings bank, on Sanders's note, one half of the mortgage-debt which Sanders paid off, leaving Sanders's mortgage of his undivided half to stand as security for the balance of his debt to the Savings Bank.
The plaintiff, complying with these terms within _____ days, may have a decree setting aside his deed to Sanders, and neither party *Page 31 must have any costs. If the plaintiff does not comply with this direction, the defendant may pay within _____ days the amount due on his note to the plaintiff, and, on such payment being made, the bill will be dismissed without costs.
The bill will be retained for further directions, in case neither party should comply with the foregoing terms.
LADD and SMITH, J. J., concurred.
Decree according to the above views.