Curtis v. City of Sacramento

McKee, J. The plaintiff sued upon an award made in pursuance of an instrument in writing, purporting to have been made on the 29th of July, 1878, “ by and between the plaintiffs and the board of trustees of the city of Sacramento, representing and acting for said city.” Pursuant to the terms of the instrument the question of the value of some professional services which had been rendered by the plaintiffs for the city of Sacramento was referred to two arbitrators—one to be selected by the plaintiffs,°and the other by the board of trustees—who were to meet as soon as convenient, and after hearing such statements as would be made on behalf of either party, were to determine and report in writing to each of the parties; but in case of a disagreement, power was given them to select a third arbitrator; and it was stipulated that the award of any two of the three arbitrators would be regarded as the award of all, and entered as a judgment against the city, after being allowed by the board of trustees.

Two persons were selected pursuant to the terms of the submission ; and the court found that, soon after the selection they had a meeting, at ivhich they received the unsworn statements of those who were present to testify. The plaintiffs were present at the meeting, but the mayor of the city was not present; and no notice of the meeting was given to or served upon him, either by the arbitrators or by the plaintiffs, and he had no opportunity to be present. Two of the trustees were present as witnesses, one of whom withdrew after making his unsworn statement to the arbitrators. The arbitrators were unable to [104]agree, and they selected a third person, who, upon being notified, accepted the appointment; and the three arbitrators were then sworn and qualified according to law. But they gave no notice to the defendant of a hearing, or of a meeting to be held for hearing the parties and their witnesses, nor did- they take any testimony. The original arbitrators handed to the third arbitrator a transcript in long-hand of the phonographic reporter’s notes of the statements made to them. Upon that transcript the third arbitrator ex parte took the unsworn opinions of professional men, and those opinions and the transcript of the statements made to the original arbitrators formed the basis upon which the arbitrators made their award.

The court held that the award was invalid and void’, for want of notice to the defendant, of the time and place of hearing the cause.

It is contended that the decision is erroneous, because as the award was a judgment, rendered by a tribunal of the parties’ selection, having jurisdiction of the subject-matter submitted to it, and of the parties by whom the submission Avas made, the Avant of notice of the time and place of meeting for the hearing, and determination of the matter submitted, does hot invalidate the aivard, and constitutes no defense to an action at laAv upon it. But the validity of an award does depend not only upon the due and proper appointment of the arbitrators, but upon the regularity of their proceedings (Crowell v. Davis, 12 Met. 296), and we think if these proceedings are had ex parte, and Avithout notice to the parties of a hearing, their award is invalid and void. That, it is contended, is contrary to the English rule Avhich makes an award conclusive at law. We do not understand that such a rule prevails in the English courts. It is true that in Tittenson v. Peat, 3 Atk. 529, which Avas decided in 1747, where the defendant pleaded an aAvard, and objection Avas made that the arbitrators did not give sufficient notice of the time they intended to meet, or of the particular place at Avhich they were to meet, Chancellor Hardwicke overruled the objection as immaterial, saying that '‘the arbitrators Avere not bound to give notice; and that the only ground to impeach an aAvard is collusion or gross misbehavior in the arbitrators, for, otherAvise, being made the judges of the parties’ own choosing, it is