The evidence in this case tends to show that the plaintiff Beattie had little or no acquaintance with the arbitrators before the agreement to refer was made, and that he did not know that either of the arbitrators had formed or expressed any opinions unfavorable to him, or that they were not entirely impartial and indifferent persons.
The evidence of the plaintiff tends to show that the arbitrator Kent had previously formed and expressed opinions very unfavorable to the plaintiff; and also that the arbitrator Barney had done the same thing.
The evidence also tends to show these persons were on friendly terms with the defendant Hilliard, and that they were unfriendly to the plaintiff Beattie.
It is almost if not entirely certain that if the plaintiff had known how these arbitrators had felt and had expressed themselves with regard to himself and his cause, he would never have consented to refer the controversy to them.
The evidence also tends to show that Mr. Lindsay, who acted as go-between in the negotiation, represented that they were fair and impartial men.
It appears to me that if this were true, as the evidence certainly tended to show these arbitrators were instrumental in practising a fraud upon the plaintiff, and inducing him to agree to an arbitration which he never would have agreed to if they had told him frankly how they felt and what they said, if the plaintiff's evidence was correct. Of course, we do not assume here to find as matter of fact anything one way or the other. What is necessary for the court to know is, that there was evidence laid before the jury, which, if believed by them, would establish the facts. *Page 434
The court instructed the jury that it was no cause for setting aside an award, that a person finally agreed upon as all arbitrator has at some time formed and expressed an opinion concerning the case, if he was impartial at the time of the hearing.
I think that this instruction and that which accompanied it were calculated to mislead the jury; to make them believe that it was quite in the ordinary course of things, and naturally to be expected, that all this would happen, and that persons to who had formed and expressed strong opinions might naturally be expected to be impartial. The jury ought to have been instructed that if the referees had formed and expressed a decided opinion, and then accepted the office of arbitrator without notifying the party of the facts, it would have been great misconduct on their part, and such as would furnish strong evidence that they were not impartial, and that their statements to the effect that they were must be received with great caution.
The practice of arbitrations is most beneficial. When the arbitrators have been fairly chosen and agreed upon, when there has been nothing in their conduct or in their speech which, if known to either of the parties, would destroy or weaken his confidence in them, the award is apt to command respect, and in the end to be satisfactory. Under such circumstances, courts are always disposed to treat with great indulgence the errors and shortcomings of referees, provided that they start with the essential qualities of fairness and impartiality. Arbitrators are liable to do a great many things which, in men trained to legal investigations, would be, and would be thought to be, wrong. They are liable to make mistakes of law, and mistakes of fact. But if, using their best judgment — not undertaking to be learned or technical — not professing to settle the law any further than what they think it ought to be for that particular case — they make an honest and intelligent award, embracing the matter submitted to them, and nothing else, courts are apt to maintain such awards, notwithstanding errors and informalities not inconsistent with integrity, and not prejudicial to the fairness of the trial.
Awards being thus so conclusive it their nature, it is necessary that those who undertake the office of arbitrators should practise the utmost sincerity, candor, and fair dealing. There should be nothing which, coming to the knowledge of either party after the award, would give him reason to believe that he had been deceived or wronged.
Now, it seems to me that it would be a grave misconduct for a person who had formed and expressed a decided opinion — one so decided as the plaintiff's evidence in this case tends to show had been formed and expressed by the arbitrators Kent and Barney, — to undertake the office without fully acquainting the party with these facts. If, knowing the facts, the party still agrees to the arbitrator, he has no cause of complaint; but he ought to be permitted to know them.
In the case of Wiggin v. Plumer, 31 N.H. 272, Judge BELL, speaking of a juror similarly circumstanced, used this language: "Mr. Coffin doubtless supposed that, notwithstanding what he had heard and *Page 435 said, he could hear the evidence without bias, and render an impartial decision; but experience does not confirm the soundness of that opinion." The case of a juror is very analogous to that of an arbitrator; but the arbitrator's power is so much greater, his proceedings are so much less liable to be under the supervision and care of experienced men, and the effect of an award is so great, that, if possible, greater watchfulness and greater care should be used in the case of arbitrators than in the case of jurors.
For these reasons, I think, the verdict should not stand.
Evidence has also been laid before the court tending to show misconduct in two of the jurymen. It appears to me that this case is also made out. The evidence certainly makes it extremely probable that at least two of the jurymen bad formed and expressed opinion unfavorable to the plaintiff. They were, also, when not engaged on the trial, frequenting one or more stores, listening to the conversation which was going on, and sometimes taking a part in it; and it seems hardly possible that jurymen, so conducting, could continue to be impartial throughout the trial, even if they were so at the commencement.
Certain questions have been presented in regard to the exclusion or admission of testimony. The first question was in regard to the testimony of the telegraph operator, to lay a foundation for introducing the evidence of the copy of Barney's message. Ordinarily it is for the court to find the facts by which the absence of the original document is accounted for. If the court found, as matter of fact, that the original message had been sent to New York, and was beyond the reach of the process of the court, that would, according to my recollection of the practice, be a sufficient reason for admitting the copy. The same principle seems to apply in this case as in the case of subscribing witnesses to written instruments. It is enough to show that the subscribing witness is out of the jurisdiction, to excuse his absence.
The questions put to the arbitrators in regard to what they found seem to be simply immaterial. It is not apparent how they could do any harm or any good to anybody.
Although the errors in the charge relate only to the first, second, and fifth issues, yet, as the evidence in regard to the misconduct of jurymen relates equally to all, the verdicts on all the issues must be set aside.