Simons v. Mills
Before: Thornton
Synopsis
Arbitration — Consultation of Arbitrators with Stranger. — An award of arbitration will not be set aside upon the ground that they consulted with a person not an arbitrator, if it appears that they acted on their own judgment in making their determination.
Id.—Power of Arbitrators—Award as to Partnership Transactions — Collection of Partnership Assets. •—A reference to arbitrators to settle all matters of difference growing out of partnership transactions gives them power to determine what amounts are due to one of the partners as trustee of the partnership, from uncollected assets in the form of bills receivable, and to determine the share of each partner therein after expenses of collection are paid; and if the articles of partnership provide for the collection of such assets by such partner, the award is not objectionable for recognizing and reciting his authority to make the collection
Thornton, J. Appeal from a judgment entered on an award of arbitrators, and also from an order denying a motion to vacate the award.
We see no error in the proceeding brought here to be reviewed on appeal. The submission provided that it should be entered as an order of court. The matters were such as could be submitted to arbitration under the statute. The court below had jurisdiction of the proceeding. No objection appears to have been made [120]in the court below that the submission was not entered as required by law, and therefore should not be considered here.
The motion to set aside the award was made on the grounds of misconduct of the arbitrators, and that the arbitrators exceeded their powers.
Painter was not an arbitrator. Though the arbitrators consulted with him, they acted on their own judgment in making their determination. This clearly appears from the affidavits of the arbitrators.
The question presented as to the determination by the arbitrators is similar to that of the verdict of a jury, where it is agreed that each juror shall set down in figures what shall be the amount of their verdict and divide the whole sum by twelve to fix the amount, without agreeing to be bound by it, then afterward agreeing to determine the same upon consideration of the evidence. A verdict so found has been held to be good. (Wilson v. Berryman, 5 Cal. 45.).
We do not think the arbitrators exceeded their powers under the submission.
The matters referred to the determination of the arbitrators related to a certain difference which had arisen between the parties; growing out of partnership transactions in making and selling bricks. The articles of copartnership were made part of the submission, and were attached to it as an exhibit. The submission provided that the arbitrators “ shall decide upon the amounts of money that each party hereto may owe the other party hereto, at the date of this submission, arising or becoming due upon any of the transactions, acts, or omissions referred to in the preambles to this submission, and having found such amounts, shall therefrom arrive at their award, and said award may be entered as a judgment,” etc.
It is declared in the- submission that the reference to arbitrators is made “in order that all matters in differ-[121]
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