Thomas Emerson vs. Bani Udall, 8 Vt. 357

The opinion of the court was delivered by Phelps, J. Exception is taken to the charge of the Judge, at the trial in the court below, upon the ground of his refusal to charge upon sundry points relating to the award pleaded in offset, as requested by the plaintiff. And several points are made here for our decision.. „ First, it is argued, that Emerson, the plaintiff, and Davis, his co-partner, being joint parties to the submission, the decease of Davis, before the award was made, was, in legal effect, a revocation of the submission.

In reply to this, it need only be said, that whatever might be the legal effect of the decease of Davis, it was ■competent for the surviving parties to proceed with the submission, in the same sense that it was competent for them to submit their differences after his .decease. The submission, being by parol, could be enlarged or extended by parol, and the arbitrators having proceeded by express direction of the plaintiff, after the decease of his partner, it certainly is not competent for him to object their want of authority.

Secondly, it is insisted, that the notice given .by the arbitrators of the time and place oí hearing w'as not sufficient. This point was left to the jury, upon the reasonableness of that notice, and very properly, as we apprehend. The case has been compared to the case of negotiable paper, where the sufficiency of the notice is matter of law. But, in our opinion, the cases are widely different. In the case of negotiable paper, the law requires immediate notice, as a matter of strict law, and as a condition precedent to the right of recovery.

The sufficiency of the notice does not depend upon its reasonableness, under the circumstances of each case, but upon its conformity with certain established and arbitrary rules, universally acknowledged, and which, from this circumstance, are regarded as making a part of, and qualifying the contract. Hence they must be as strictly conformed to, as if expressly incorporated into the contract.

And a jury have nothing to do with the reasonableness of notice in such case, any more than they have with that of any rule of law, which is founded, not so much upon the equity of the case, as upon considerations of general expediency. But in this case, all that the law can require is -reasonable notice. The object is merely to enable the party to prepare for trial; and if this purpose is answered, the law is satisfied'.

Whether notice, in any given case, is sufficient for this object, depends altogether upon the circumstances of the case, and becomes, in this view, a mixed question oflatv and fact, proper for the consideration of a jury. Thirdly, It is objected that the court erred in omitting to charge the jury, that fraud in the party, in obtaining the award, will vitiate it. We deem it unnecessary to follow the counsel in the discussion of the question, whether fraud in obtaining an award will furnish an available defence at law to*%n action on the award.

For we may concede to them the general proposition, and yet it will be no difficult matter to sustain the charge. The facts relied on by the plaintiff, as constituting the fraud, which he insists is sufficient to avoid the award, cousist merely of the assumption that the claim presented by the defendant to the arbitrators, and by them allowed, had been previously paid, and the inference that the defendant was cognizant of the fact.

It is obvious that if such á defence were admissible, courts of law could be required, in all cases, to re-examine the decision of the arbitrators, and that the award would be divested at once of its conclusive character. The question whether a claim allowed by arbitrators be well or ill founded, would, in most cases, be a question for the jury to decide ; and the question as to the knowledge of the party would always be so. Such a defence, if admitted, would necessarily open the original controversy, and the award would be no more than prima facie evidence.

The validity of the award would depend upon the original merits of the controversy, and the party who seeks to enforce it would be compelled to rely, not so much upon the determination itself, as upon the evidence upon which it was originally obtained. At the same time, courts would be compelled to set aside an award, whenever their opinion, either as to the law or the inferences of fact to be drawn from the evidence, differed from that of the arbitrators.

While the party, in order to avail himself of the award, must be always prepared to sustain its propriety by. evidence of the legality and justice of his claim. In short, the award is in itself conclusive of the legality and justice of the claim, and of all inferences to be drawn from its legality or falsity. And to avoid it upon the score of fraud, it becomes necessary to prove facts not within the scope of inquiry before the arbitrators, and from their nature not concluded by the award. Such cases may exist, and a positive fraud may be proved, without impugning the conclusive character of the award.

But we are all of opinion, that something more is necessary for this purpose than simply to shew that the claim was unfounded, and that it is fairly inferable from the evidence exhibited, that the party was cognizant of the fact. Without deciding whether a court of law can entertain such a de-fence, we think the charge of the county court correct, upon the ground that the award cannot be impeached in the manner here attempted, and upon the evidence exhibited. Judgment affirmed.