statute, notwithstanding the fact that the courts have frequently shown a disposition to give a liberal and comprehensive construction to submissions," and though awards insufficient to authorize the entry of a final award under the statute have been upheld as a common-law award.'

525. A Submission to Arbitration should be Distinguished from an Appraisal.-In drafting the agreement to arbitrate, care should be taken to make it a submission to arbitration and not a mere appraisal. "To constitute a submission to arbitration there should be at least a matter of doubt or a controversy which requires more than a mere operation of measurement, calculation, or investigation to determine. A matter of uncertainty which merely requires the services of an engineer or accountant or of an expert to determine is not usually regarded as a subject of an arbitration, and the results obtained are frequently held not to have the conclusiveness of an award." Mr. Fry, in his book on "Specific Performance of Contracts," says that "the persons nominated to value are sometimes, though inaccurately, spoken of as arbitrators. Arbitrators are appointed to settle a preexisting dispute-valuers to ascertain the value of the subject-matter of a sale.'*

In regard to matters left to engineers on construction work the decisions cannot be reconciled, they are so much at variance. Some hold the determination of the engineer final to the extent of his employment, even when his decision is not made a condition precedent to recovery by the contractor.t A like difference of opinion exists in regard to appraisals.

The binding effect of a contract stipulation to refer all questions and disputes that may arise in the course of the construction of works to the engineer in charge or to a board of arbitration is not recognized as a submission to arbitration by some courts on the ground that no dispute has arisen, and therefore there could never have been any submission of a dispute or difficulty that has never arisen. Many cases hold that the stipulation of a construction contract for the determination of disputes not yet arisen, but which may come up in the course of the work, is not a submission to arbitration, because there can be no submission of a controversy that has not arisen, or that has no existence. If, however, the parties have attended such a hearing under such a stipulation or have allowed the engineer to render his decision or award under it without protest or revoking the quasi-submission, the award made will be valid and binding, for they will be held to have adopted the submission previously drawn up and executed. After the award has been made

11 Amer. & Eug. Eucy. Law 654-57; Kendrick v. Tarel, 26 Vt. 416 [1854].

Dockery v. Randolph (Tex.), 30 S. W. Rep. 270; Greer v. Canfield (Neb.), 56 N. W. Rep. 883.

1 Amer. & Eng. Ency. Law 659, and

* See Sec. 348, supra.

+ See Chap XII, and Chap XIII, Secs. 335-417, supra. See Chap. XII, Secs. 335-366, supra.

neither party can retain the benefits of the arbitrators' decision and avoid its effect as a bar to the original cause of action based on the controversy, by showing the arbitrator's misconduct.' If either party has notice of misconduct of an arbitrator, and instead of revoking the submission he goes on to a final hearing and finding by the arbitrators, he must be regarded as waiving his right to object. In a contract for the purchase of machinery by a railroad it was recited that "if a satisfactory price cannot be agreed on between the parties, each shall select an arbitrator, and these shall select a third, who shall fix the price of the machines, and whose decision shall be final," it was held that this was a submission to arbitration and not a stipu lation for a mere appraisal.'

The way to avoid the question as to arbitration is to make the appointment and certificate or award a condition precedent to any right to payment to the contractor and to any liability on the part of the company or to any action by the contractor for the price or value of his work done or materials furnished by him. Such a condition precedent must be performed before any action can be brought, for the debt in that case does not arise upon the completion of the job, but upon the performance of the contract and the condition precedent which it contains.**

The conclusiveness and binding effect of an engineer's decision often fails when disputes have been left to his decision on the ground that no dispute has arisen as described in the contract, and therefore no award could properly be made. †

526. What Rules Govern the Arbitration.—In the absence of statutory requirements the parties may by the terms of their submission agree that the hearing shall be conducted and that the award be made in accordance with the rules and regulations and by-laws of any association or society or by any professional code of ethics, as those of a church or engineering society to which the parties belong,' and the award is none the less binding when made pursuant to such rules and regulations. They may agree that no oaths shall be administered to arbitrators and that the testimony of unsworn witnesses shall be received.' Likewise the oaths of the arbitrators may be waived by the parties, but if the statute require that the oath be administered, the consent to waive it must be in writing."

527. Parties are Entitled to a Hearing and to Notice of the Same. - In the absence of a stipulation to the contrary the arbitrators must grant the parties a hearing, and in each other's presence, and they should have ample 6 Payne v. Crawford, supra. Russell v. Seery (Kan.), 35 Pac. Rep.

Orvis v. Wells F. & Co. (C. C. A.), 73 Fed Rep 110.

2 Seaton Kendall, 61 Ill. App. 289. 3 M.. K & T. R. Co. v. Elliott, 50 Fed. Rep. 772.

911.

1 Amer. & Eng. Ency. Law 669-70. Payne v. Crawford (Ala.), 10 So. Rep.

812.

8 Flannery v. Sahagian (N. Y. App.), 31 N. E Rep. 319; In re Grening, 26 N. Y. Supp. 117: Erie Tel. & Teleph. Co. v. Bent, 39 Fed. Rep. 409 [1889].

* See Secs. 342-343, 345 and 407-417, supra.

+ See Sec. 369, 414, supra.

notice of the time and place, and no hearing should be granted to one party without notice to the other party. Affidavits, statements of account, estimates, and other documents should not be received by one party without the knowledge of the other party.'

Notice need be given and the attendance of the parties requested only at meetings at which evidence oral or written is received. At the consultation or when the award is drawn up and signed, or at a meeting for the sole purpose of viewing the works or premises, the parties need not be invited.'

It has been held that notice should have been given of a meeting called solely to inspect the works, but which was attended by one of the parties, and at which various inquiries were made of persons present. The sureties under a contract it seems are not entitled to notice, if the parties themselves or their attorneys are notified.*

If a party attends a hearing and presents his case he cannot afterwards object to the award, for the reason that he had no formal notice of the meeting. Either party may waive his right to a notice of a hearing. An agreement in the submission that the arbitrators may proceed ex parte, if either party fails to appear, does not render the submission irrevocable.**

528. Conduct of the Hearing.-So long as an arbitrator or umpire conforms to the submission and to the statute law governing arbitrations, he may conduct the hearing at such time and place, and in such manner as seems to him most fair and reasonable, and the courts will not review his discretion if he has acted according to the principles of justice and with fairness to both parties. He may change the time and place of hearing or adjourn it at the request of either party as he sees fit, or he may refuse to postpone it if he has good reason.

If he has good reason to believe that either party is absenting himself from the hearings to defeat the arbitration, he may give peremptory notice of his intention to proceed with the hearing without him. If the party does not then appear or give a very satisfactory excuse, and if the party continue to absent himself, he may for good cause proceed without him. The fact that one party has caused some needless delay is not sufficient cause for the arbitrator to close the case without giving him due notice. He should not at any time unexpectedly make an award without some notice to the parties. that the hearing is at an end.' He should hear all the evidence offered by both parties that is material to the question at issue.*

11 Amer. & Eng. Ency. Law 685.

2 Adams v. Bushey, 60 N. H. 290; Straw v. Truesdale. 59 N. H. 109, Roloson v. Carson, 8 Md. 208 [1855).

3 Wood v. Helme, 14 R I. 325; Knowl. ton v. Mickles, 29 Barb. (N. Y.), 465; but see Hall v. Norwalk F. I. Co. (Ct.), 17 Atl. Rep. 356.

41 Amer. & Eng. Ency. Law 686.

5 Boston & L. R. Corp. v. Nashua & L. R. Corp., 139 Mass. 463.

6 Cases cited in 1 Amer. & Eng. Ency. Law 682.

71 Amer. & Eng. Ency. Law 681.
81 Amer. & Eng. Ency Law 680.

* See Secs. 492-498, supra, Clauses waiving the right to a notice.

Sometimes the stipulation recites that the engineer is appointed on account of his skill and knowledge of the subject in dispute, and although not generally expressly so stipulated, yet in fact it is almost universally the case in engineering and architectural contracts that the arbitrators are selected because of their special knowledge and understanding of the subject independent of any evidence presented by the parties. When it has been so declared expressly, it has been held that the arbitrator might properly refuse to hear evidence and decide the questions presented. upon his own knowledge and skill.' So it has been held that an engineer or arbitrator might in his discretion comply with a request of either party to go and view the premises.' His refusal to hear testimony that estimates furnished by his assistants were wrong, has been upheld by the courts.'

529. Arbitrators must Determine Questions Themselves, Cannot Leave Them to Others.-Arbitrators cannot delegate their powers and duties to others, nor can they elect or appoint a substitute to act for one of their number who fails or refuses to serve. They may not delegate their power to decide matters embraced in the decision to others, not even to the court which appointed them. They cannot provide for the settlement of future disputes by another tribunal, or agree to abide the decision of a third party or to be bound by the decision of some other engineer as to a question of construction, or that of some lawyer on a point of law.*

It is no objection to an award that the arbitrators took advice relative to the questions before them if they decided on their own judgment. They may secure the assistance and council of engineers, surveyors, lawyers, accountants, and experts, and may employ their opinions and results as evidence, and adopt them as their own conclusions if assured that they are correct. They must not leave matters to the final determination of others, but the decision rendered must be the result of the arbitrator's own deliberations and judgments."

The valuation of a mine may be founded upon the report of an expert sent by the arbitrator to visit it, and certificates of work may be based upon estimates made by assistant engineers, surveyors, and accountants, these duties being held purely ministerial, and therefore capable of being delegated."

*

Under a reference to two disinterested persons together with W., as surveyor, with the privilege to call in a third party, it was held not to make the surveyor an arbitrator, but to designate him merely as a surveyor to assist them in their estimates and measurements."

1 Cases coll cted in 1 Amer. & Eng. Ency. Law 681.

Mundy v. Black, 9 C. B. N. S. 557.
Sweet v. Morrison, 116 N. Y. 19 [1889].

1 Amer. & Eng. Ency. Law 678-686.

1 Amer. & Eng. Ency, Law 678. Crawford v. Orr, 84 N. C. 246; but see State v. Bayoune (N. J.), 8 Atl. Rep. 295. *See Secs. 500-505, supra.

530. The Arbitrators must Act Together.-When a dispute is left to the judgment and determination of three arbitrators, or to two arbitrators and an umpire to be selected by the arbitrators, the three must act together as a body in determining any and all questions. A finding by two only will not be binding on the parties. If the submission provide for the concurrence of the three arbitrators an award signed by two will not be final, even though the third, while refusing to sign, state that "it is all right." If private matters be submitted to three persons, and there is no express nor implied authority that a less number may decide questions submitted, an award by two of them will be void. In public matters a majority may make the award, but they must act together and all take part in the proceeding.* Therefore, if the arbitrators are appointed in pursuance of a company's charter and a majority sign the award, which purports to be the act of all, it is valid. An award made under a submission to two arbitrators and an umpire to be selected by them, is valid, although it is signed by only one arbitrator and the umpire. It should be clear that the reference is to the three as arbitrators, and that the umpire is regarded as an arbitrator merely, and not as a judge between the two arbitrators selected."

Under a submission to three arbitrators, with power to any two to make the award, and notice of a meeting is sent to one who refuses to attend and take part, it was held that the other two may proceed, and their award will be valid; but if the submission provides that an award of the majority shall be final, all three must be present at every stage of the hearings. If one refuse or fail to act, the others can make no valid award. It is well established that all must be present throughout each and every meeting, not only for the purpose of hearing the evidence and arguments, but for consultation and the determination of the award. Both parties are entitled to the exercise of the judgment and discretion and to the benefit of the views, arguments, and influence of each one of the arbitrators they have selected at every stage of the arbitration."

When questions are left to the judgment of two architects, the judgment cannot be rendered solely upon the knowledge and inspection of one of the architects, though the other architect had been fully informed thereof. Each must be informed independently and from his own examinations and inspections."

Stose v. Heisler (Ill.), 11 N. E. Rep. 161 [1887].

2 Weaver v. Powel (Pa.), 23 Atl. Rep. 1070.

3 Hubbard v. Great Falls M Co. (Me.), 12 Atl. Rep. 878 [1888]

1 Amr & Eng. Ency. Law 684; but see Moore v. Mattoon (Ill. Sup), 45 N. E. Rep. 567, a report by three commissioners.

5 Darmia v. Horicin I. M. Co., 22 Wis. 691; see also Newcomb v. Wood, 97 U. S. 581 [1878]. Stiringer v. Toy (W. Va.), 10 S. E. Rep.

26 [1889].

Savannah, etc., R. Co. v. Decker (Ga.). 21 S. E. Rep. 372.

1 Amer. & Eng. Ency Law 684.

9 Doherty v. Doherty (Mass.), 19 N. E. Rep. 352 [1889]; Kent & French (In.), 40 N. W. Rep. 713 [1889]; and see Balles v. Bass F. & M. W'ks (Ind.), 28 N. E. Rep. 319 [1891].

101 Amer & Eng. Ency. Law 683; Birr v. Chandler (N. J.). 20 Atl. Rep. 733 [1890]. Benson v. Miller (Minn.), 57 N. W.

p. 943.