
    Corrigan v. Rockefeller.
    
      Arbitration — Chosen by parties to action in common pleas court —Agreement to submit law and facts for final determination — Prevailing party to have judgment — Award conforms to all agreement requirements — In absence of fraud is binding — An “opinion” submitted by arbitrators not competent evidence to impeach the award, when — Rules of evidence.
    
    1. Where the parties to an action .pending in the court of common pleas enter into an agreement of arbitration, the same not being made a rule of court, which agreement provides-for the submission to arbitrators in such agreement named, of all the issues of law and fact joined between the parties in the action, to hear and finally determine the same, and provides further that the award of the arbitrators shall be final and conclusive upon the parties, and that the prevailing party shall have judgment, and the arbitrators take upon, themselves the burden of the submission, and trial is had before them pursuant to its terms, and award is rendered which conforms in all respects to the requirements of the submission, such award, in the absence of fraud and of such manifest mistake as naturally works a fraud, is binding upon the parties and entitles the successful party to judgment thereon.
    2. A paper called an “opinion” signed by the arbitrators and delivered in such case by them to the counsel of the parties, accompanying the award, which paper purports to cite reasons for the decision of the arbitrators, but is not made part of the award nor in any way referred to in the award, and is not required by the agreement of submission, or the’ oaths of the arbitrators, is not competent evidence to impeach the award.
    3. Nor is the testimony of the arbitrators in such case competent evidence to impeach the award.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    The controversy in this court grows out of a suit brought June 30,1897, by the plaintiff in error, James Corrigan, against the defendant in error, John D. Rockefeller, in the common pleas of Cuyahoga, wherein it was sought to obtain the rescission of a certain contract dated February 19, 1895, between the parties, whereby the plaintiff had sold to the defendant twenty-five hundred shares of what was known as Standard Oil trust certificates, said certificates having theretofore been pledged for the purpose of securing the defendant for sundry large sums of money, amounting to $275,000.00 or over, loaned by defendant to plaintiff prior to said date. The ground of the relief asked was that the plaintiff had been induced to enter into the contract by the fraud of the defendant, the said defendant being a trustee for the plaintiff, and, owing to his relation to the Standard Oil trust, having superior knowledge as to the value of the stock in question which he did not disclose to plaintiff as it was his duty to do, and that at the time of the sale, the stock was of much greater value than the price at which the same was sold; also that defendant had actually misrepresented to plaintiff the condition of the trust, and the value of the trust certificates. The relief asked was that the contract be set aside, that the certificates be returned to plaintiff, and that defendant be required to account for the earnings thereof during the time the same had been in his possession. Issue was taken by answer as to divers statements of fact, and especially as to all averments of fraud, actual or constructive, and new matter pleaded which it is not necessary to here repeat. As to this new matter a reply was filed denying the same, and thus the issues were made up.
    The cause rested in court until, on September 16, 1899, the defendant filed a supplemental answer alleging that the cause had been, by written agreement of the párties, submitted to the arbitrament of arbitrators, heard by the arbitrators in conformity with the submission, and an award made and returned to the parties finding all the issues for the defendant, and pleading further that by express written stipulations of the parties, the defendant was entitled to a judgment dismissing the action, and praying for such judgment. To the pleading was attached a copy of the agreement of submission, a copy of the award, and a copy of the stipulation.
    The controlling features of the agreement of submission here follow, viz.:
    “An action is now pending in the court of common pleas in and for the county of Cuyahoga, state of Ohio, in which James Corrigan is plaintiff, and John D. Rockefeller is defendant, being cause No. 60,101 upon the docket of the said court, and Mr. Corrigan and Mr. Rockefeller have agreed to submit and refer all the issues of fact and of law joined between the parties in the said action to the award and determination the said William G. Choate, of New York, William A. Lynch, of Canton, Ohio, and John W. Simpson, of New York.” * * * Also: “We, the said James Corrigan and John D. Rockefeller, have nominated and appointed, and do hereby nominate and appoint, ■ the said William G. Choate, of New York, William A.' Lynch, of Canton, Ohio, and John W. Simpson, of New York, to be arbitrators between us, to whom we refer all the issues of law and -of fact joined by the pleadings in the said action, to hear and finally determine the same.” * * * “The hearing before the said arbitrators shall be conducted under the pleadings and proofs in the said action and in all respects in the same manner as though the said issues were regularly tried in the court of common pleas in the state of Ohio.”
    It *is then provided that the persons named shall sit as a court; that the parties shall produce books and papers and other evidence, and the powers of the arbitrators are fully pointed out and expressed.
    “Hearings may be adjourned from time to time and from place to place by a majority of the arbitrators, but in all other matters all of them must concur. The award of the arbitrator's must be in writing, in duplicate, and signed by all the arbitrators.
    “The award of the arbitrators, made in accordance with this submission, shall be final and conclusive upon the parties. The parties agree each for himself that he will not withdraw from the arbitration provided for in this agreement, and that he will stand to, abide by and perform the award and determination of the said arbitrators made in accordance with the provisions of this agreement. Simultaneously with the execution of this agreement, the parties will execute and deliver to tlie said arbitrators to be held by them in escrow the following instruments: Plaintiff and his attorneys will execute and deliver a stipulation providing that judgment may be rendered in the action forthwith, dismissing the action in the common pleas upon the merits without costs as against the defendant, and will also execute and deliver a general release from himself to defendant from all claims, etc. The defendant will execute and deliver a stipulation providing that judgment may be entered therein as prayed in the petition.”
    These respective stipulations were to be delivered by the arbitrators each to the opposite party in case either should refuse to abide by the award, or withdraw from the submission.
    It was further provided for the substitution of other arbitrators in case any named should decline to serve; and Mr. Simpson declining 'to serve, William D. Guthrie, Esq., was substituted and served as one of the arbitrators.
    The award in hace verba follows:
    
      “In the Matter of The Arbitration between James Corrigan, plaintiff, and John D. Rockefeller, defendant, in an action (No. 60,101), pending in the Court of Common Pleas of Cioyahoga County, Ohio.
    
    “award.
    “This award, of William G. Choate, William D. Guthrie and William A. Lynch, in the above entitled matter, witnesses:
    “1. That heretofore, to-wit, on October 11, 1898, James Corrigan, of Cleveland, Ohio, and John D. Rockefeller, of the city of and state of New York, entered into an agreement in writing by which they agreed and bound themselves to submit and refer all the issues of law and fact joined between them in the action above referred to to the determination and award of William G. Choate, of New York, William A. Lynch, of Canton, Ohio, and John W. Simpson, of New York, as arbitrators between them; it being further provided in said agreement that in case either Mr. William G. Choate or Mr. John W. Simpson declined to serve as arbitrator, then the parties nominated and appointed Mr. William D. Guthrie, of New York, to be arbitrator in the place of the one so refusing to act. Said William G. Choate and William A. Lynch consented to act as arbitrators, but said John W. Simpson declined to act as such arbitrator, and thereupon said William D. Guthrie consented to act in that behalf.
    
      "2. That said William G. Choate, William D. Guthrie and William A. Lynch thereupon took upon themselves the burdens of said arbitration and fixed January 24,1899, at 11 o’clock A. M., as the time, and the office of said William G. Choate, at 40 Wall street, New York city, as the place for holding said arbitration, of which they gave to both parties due notice.
    
      “3. That at the time and place last mentioned the arbitrators met and the plaintiff, with the Hon. Stevenson Burke, as his attorney and counsel, and the defendant, with Yirgil P. Kline and George Wei wood Murray, as his attorneys and counsel, appeared before the arbitrators, when the arbitrators in the presence and with the consent of the parties severally took the oath required by the laws of Ohio and said written agreement.
    “4. Before the commencement of the hearing the three written instruments required by the written submission, and which had been executed by the parties as therein stipulated and delivered to the arbitrators to be held in escrow, were examined and verified, namely, the stipulation in said action providing for the entry of judgment executed by the plaintiff and his attorneys, also a general release executed by the plaintiff to the defendant and' a stipulation executed by the defendant and his attorneys, all of which were found to be in strict conformity to the requirements of said written submission, and the same are now held in escrow for the purposes and subject to the provisions of said original agreement of submission.
    “5. Thereupon at said time and place, the parties proceeded in due order with the introduction of their testimony, the hearing being adjourned from time to time to suit the convenience of parties, and-upon the conclusion of the testimony the parties were fully heard in argument by brief and orally, and on or about February 17, 1899, the case was submitted by both parties and thereupon the arbitrators took the matter under advisement.
    “6. Said hearing was conducted under the pleadings and proofs in the action above referred to and in all respects in the same manner as though the issues, therein were regularly tried in the court of common pleas in the state of Ohio, the arbitrators hearing and determining all questions as though they were sitting and qualified to sit and hear and determine said action as a judicial court, and passed upon all questions arising under the pleadings and upon the competency and relevancy of evidence as though said action were tried in said court.
    
      “7. On March 27, 1899, it appearing that the arbitrators would be unable to make and deliver their award on or before April 1, 1899, as required by said written agreement of submission, said parties on that day entered into an agreement, in writing, amending said original agreement so as to provide for the making and delivery of the award of the arbitrators on or before April 15,1899, with like effect as if said date had been written in said original agreement.
    “8. And upon April 12, 1899, it appearing that the arbitrators would be unable to make and deliver their award on or before April 15,1899, said parties on that day entered into an agreement in writing amending said original agreement so as to provide for the making and delivery of the award of the arbitrators on or before May 1,1899, with like effect as if said date had been written in said original agreement.
    “9. And now, on April 20, 1899, said arbitrators having fully considered all the matters and things submitted to them and having considered the allegations of the parties, the testimony submitted and the arguments of counsel, and being fully advised in the premises, do hereby make and publish this as their award, to-wit:
    “ (a) They find and determine the issues joined in said action, in favor of the defendant, and that he is entitled to have said action dismissed upon its merits with taxable costs against the plaintiff.
    “(b) They find and determine that the costs of the arbitration, including the fees and traveling expenses of the arbitrators, which are hereby taxed in the aggregate at $4,750.00 shall be borne, one-half by the plaintiff and one-half by the defendant, and that the expense of the stenographic minutes taken upon said hearing be also equally divided between the plaintiff and the defendant.
    
      “Executed in duplicate at the city of New York, April 20, 1899.
    “Wm. 6. Choate,
    “William D. G-uthrie,
    “Wm. A Lynch.”
    To this answer a reply was filed, admitting the execution of the papers, copies of which were given with the answer, but alleging that the award consisted of two parts, one called an “opinion,” and the other called “award,” both instruments being delivered to both parties at the same time, and as the award and decision of the arbitrators. A copy of the “opinion” was attached. The pleading further averred that the award was not in accordance with the submission in that the arbitrators did not and could not concur in opinion as to all the facts in issue, but disagreed, and did not at any time agree or concur in opinion as to the issues of fact joined in said action and submitted to them for decision, and had, therefore, no lawful authority to make any award, and the pretended award is null and void for want of authority. Other ■allegations followed averring irregularities in the proceedings of the arbitrators which, it was charged, rendered their award void and of no effect.
    The charge of failure to agree is based upon this paragraph of the paper called “opinion,” viz.:
    “Third — The arbitrators are not unanimous on the question whether the defendant had shown affirmatively that his purchase of the stock was for its full value at the time of the purchase, or that, in fact, he had no advantage in the transaction from the superior knowledge which he gained from his relation of trustee. Assuming, however, that the purchase was impeachable or voidable, on the ground that it was a purchase by a trustee from a cestui que trust, they are of opinion that the plaintiff was bound within a reasonable time after he was advised of his right to rescind , the contract, to signify his election to make such rescission unequivocally and to give notice thereof to the defendant which would fix the rights of the parties. It is quite evident from the testimony that when this contract was entered into neither party understood that the relation between them was such that the plaintiff had the right to rescind the contract, but within a very few weeks after the contract was ■executed the plaintiff was fully advised of this right, and in our opinion the defendant in good faith offered to give him the information which he sought which would have borne upon the question of the value of the stock so far as such information was within the defendant’s possession. The defendant offered to show him the statements, such as were accessible for the information of the stockholders, but the plaintiff saw fit not avail himself of this means of information. While he may have had a right to rescind he was not at liberty to play fast and loose with the defendant in the matter, nor to wait and see whether subsequent changes in the value of the stock made it for his interest to rescind, or to let the purchase stand, and to govern his action accordingly. This is a just and inflexible rule and applies with especial force to a transaction in securities of a fluctuating character, such as was the stock in question. The plaintiff was bound to make his election promptly. He did not do so, but waited about two years, when he commenced this action. We are of opinion that whatever right to rescind he ever had had then expired by reason of his not. having within a reasonable time made his election and notified the defendant thereof.”
    
      The cause was tried in the common pleas, and resulted in judgment for the defendant. From this plaintiff appealed to the circuit court, and in this court judgment was, also, upon trial, rendered for defendant At the trial the plaintiff offered in evidence the paper called “opinionalso the depositions of two of the arbitrators, which were received over the objection of defendant, and which testimony affords the basis for the complaint of plaintiff in error in this court
    
      Mr. Stevenson Burke and Mr. H. H. Poppleton, for plaintiff in error, cited and commented upon the following authorities:
    Morse on Arbitration, 340, 345; Montague v. Smith, 13 Mass., 396; Stanton v. Henry, 11 Johns., 133; Bhear v. Harradine, 7 Exch., 269; Hough v. Parker, 4 Dall., 285; Commonwealth v. Proprietors, 7 Mass., 399; Brown v. Hankerson, 3 Cow., 70; Lyle v. Rodgers, 5 Wheat., 394; Red v. Gibbons, 7 S. & H., 204; Lee v. Anstall, 11 Pick., 296; Shoens v. Gray, 2 Harring, 347; Gibson v. Powell, 5 S. & M., 712; Adams v. Adams, 8 N. H., 82; Richards v. Drinker, 6 N. J., 307; Barker v. Hough, 7 N. J., 428; Varney v. Brewster, 14 N. H., 49; Stone v. Phillips, 4 Bing. N. C., 37; James v. Thurston, 1 Clif., 367; Edwards v. Stevens, 1 Allen, 315; Wright v. Wright, 5 Cow., 197; Jackson v. Ambler, 14 Johns., 96; Randall v. Randall, 7 Est., 45; Mitchell v. Stavley, 16 Est., 58; Carnochan v. Christie, 11 Wheat, 446; Russell on Arbitration (2 ed.), 235; Allen v. Galpin, 9 Barb., 246; Tudor v. Scovell, 20 N. H., 174; Filley v. Pope, 115 U. S., 213; Anderson’s Law Dic., 222; Bouvier’s Law Dic., 467; Pomeroy’s Equity, section 885; Traill v. Baring, 4 DeG. J. & S., 318; Ship v. Crosskill, 10 L. R. Eq., 73; 
      Hovenden v. Lord Annesley, 2 Sch. & Lef., 607; Rawlins v. Wickham, 3 DeG. & J., 304; Hadley v. Importing Co., 13 Ohio St., 502; Perry on Trusts, sections 194, 197; Pomeroy Eq. Jur., section 958; Pomeroy’s Eq., 901; Wyman v. Hammond, 55 Me., 534; Culver v. Ashley, 17 Pick., 98; Shearer v. Handy, 22 Pick., 417; Skipper v. Grant, 10 C. & R, 237; Price v. Popkin, 10 Ad. & Ell., 139; Cook v. Carpenter, 34 Vt., 121; Blanton v. Gale, 6 B. Mon., 260; Butler v. Mayor, 7 Hill, 329; Russell on Arbitration (3 ed.), 235; Bishop on Contracts, section 580; Benjamin on Sales, section 361; Anderson’s Law Dic., section 222; Berkmeyer v. Kellerman, 32 Ohio St., 253; Morse on Arbitration, 212; Woolen Co. v. Day, 12 Cush., 128; Railroad Co. v. Railroad Co., 14 Gray, 253; Merrill v. Gold, 1 Cush., 457; Cook v. Jaques, 15 Gray, 59; Woodbury v. Northy, 3 Greenl., 85; Spruck v. Crook, 19 Ill., 415.
    
      Mr. Virgil P. Kline and Mr. George Welwood Murray, for defendant in error, cited and commented upon the following authorities:
    
      Harker v. Hoyle, 7 N. J. L., 428; Stone v. Phillips, 4 Bing. N. C., 37; Varney v. Brewster, 14 N. H., 49; Richards v. Drinker, 6 N. J. L., 307; Lyle v. Rodgers, 5 Wheat., 394; Jackson v. Ambler, 14 Johns., 96; Commonwealth v. Proprietors, 7 Mass., 399; Upton v. Tribilcock, 91 U. S., 45; Vigers v. Pike, 8 Cl. & Fin., 562; Peters v. Delaplaine, 49 N. Y., 362; Bliss v. Pritchard, 67 Mo., 181; Emmitt v. Brophy, 42 Ohio St., 82; Smith v. Clay, 3 Bro. Ch., 640; Norway v. Rowe, 19 Ves. Jr., 144; Grymes v. Sanders, 93 U. S., 55; Twin-Lick Oil Co. v. Marbury, 91 U. S., 587; Hoyt v. Latham, 143 U. S., 553; Rolling Stock Co. v. Railroad Co., 34 Ohio St., 450; Sheldon v. Rockwell, 9 Wis., 183; Cox v. Montgomery, 36 Ill., 396; Gilmer v. 
      Morris, 80 Ala., 78; Rice v. Hassenpflug, 45 Ohio St., 379; Scott v. Reedy, 5 Am. Law Rec., 367; Ormsby’s Admrs. v. Bakewell, 7 Ohio (pt. 1), 98; Morse on Arbitration, 47, 59, 293, 296; Railway Co. v. Burke, 54 Ohio St., 121; Beach v. Sterne, 67 Hun, 341; 1 Freeman on Judgments (4 ed.), section 2; Kochler v. Hughes, 148 N. Y., 510; Randall v. Railroad Co., 149 N. Y., 213.
   Spear, J.

At the threshold of the inquiry we are-met with the question as to the admissibility as evidence of the paper denominated “opinion,” and the depositions of the two arbitrators, inasmuch as the entire contention of plaintiff in error rests upon that-testimony. The specific purpose in offering the-“opinion” was to establish the claim of failure on the part of the arbitrators to concur as to a material question of fact necessary to be decided in order to enable the arbitrators to decide the ultimate issue between the parties, and the depositions were offered for that purpose and also to establish the charge of fatal irregularities in the conduct of the arbitrators. The award itself affirms that the hearing was conducted under the pleadings and proofs in the same manner as-though the issues therein were regularly tried in the court of common pleas of Ohio, and the arbitrators heard and determined all questions, and passed upon all questions arising under the pleadings. The effort of plaintiff was to show that the arbitrators did not proceed regularly, and did not determine or agree upon all the issues of fact because they were not unanimous on the question whether the defendant had shown affirmatively that his purchase of the stock was for its full value at the time, or that he had no advantage from his superior knowledge. In other words, the paper embraced the reasons, or mental methods of procedure, given out by the arbitrators, separate from their award, not purporting to be a. part of the award, not referred to in any manner in. the award, and not made in obedience to any duty enjoined by the submission agreement, or the law, or the oaths of the arbitrators, but presumably given out only in response to personal requests of counsel, is to be considered as equal in solemnity and conclusiveness as the award which they are bound by their oaths, and the terms of the agreement of submission, to render ; and the testimony of the arbitrators, given after-their duties had been fully performed, is to be-heard in order to contradict the award, and to demonstrate-that, in divers important particulars, the arbitrators had failed in the performance of their duties. That is. to say, that the arbitrators themselves by the written paper which, as an act of courtesy to. counsel they gave out, and their testimony by deposition, are to be used as witnessés to impeach their’ award.

The law favors the amicable adjustment of difficulties, and arbitration has been favored by the courts, in this state from early times. It is considered that arbitrators are constituted by the parties chancellors,, judges and jurors, having jurisdiction of the law and of the facts. In general the award is final. The reason is obvious. By procurement of the parties whose cause is in court, a tribunal other than that provided by the ordinary processes of law, has been substituted. The very purpose is to reach, in a speedy and inexpensive way, a final disposition of the controversy between them, and to avoid future litigation concerning the same matters. It is in furtherance of this purpose that, by the general rule, the award cannot be overturned by the dissatisfied party. And so the rule is that it cannot be impeached for error; nothing but fraud, in the parties or in the arbitrators, or such manifest mistake as naturally works a fraud, can be alleged to avoid it. Such is the holding in Ormsby v. Bakewell, 7 Ohio, 98. See, also, Rice v. Hassenpflug, 45 Ohio St., 377; Morse on Arbitration, 47, 49, 59, 293, 296, to the effect that courts construe the act of arbitrators with liberality, and with an inclination to support arbitration where substantially regular, and that an award covering the issues, made in good faith upon a full hearing, and in obedience to the submission, is final.

If the efforts of parties to adjust their differences by arbitration are to be encouraged, it would follow that trivial objections should not avail to defeat the purpose, and final effect should be given the award of arbitrators unless substantial grounds appear to the contrary. Arbitrators are not a court, nor in fact a jury, and yet they have attributes strongly resembling both. In reason, therefore, their solemn decisions should not be overturned lightly. The award which they render is intended to be their final judgment on the issues. And, as a reviewing court does not look to the opinion of the lower court for its decision, but to the judgment actually rendered, unless the judgment refers to the opinion so as to make it a part of the record (see Beach v. Sterne, 67 Hun, 341, affirmed in 143 N. Y., 634; Koehler v. Hughes, 148 N. Y., 507; Randall v. Railroad Co., 149 N. Y., 211; Freeman on Judgments, section 2), so the opinion of the arbitrators not in any way made a part of the award, or referred to in the award, would seem to be in like manner- irrelevant. Russell in his work on Arbitration, page 471, speaking of voluntary statements by arbitrators giving an explanation of the grounds of the award, says: “When the arbitrator is willing that the principle of his decision should be reviewed by the courts, he should raise the question by stating a case in his award. If the parties do not, during the reference think fit to ask for a case, and the losing party applies for a statement of the grounds j of his decision afterwards, the courts will not notice ; it.” Citing London Dock Co. v. St. Pauls, 32 L. J. Q. B., 30, which decision fully supports the text. We are of opinion that the paper called “opinion” was not competent evidence. If the proper construction and legal effect of it is that claimed by plaintiff in error, then, there is a flat contradiction between that paper and the award, while if that contention be untenable, and the “opinion” is consistent with the award then the “opinion” was of no consequence in determining the issue before the court. In either view it should not be considered.

But the same point was sought to be made by the testimony of two of the arbitrators. An arbitrator has no privileged standing to exempt him from being called, and it is settled that for some purposes he is a competent witness. It has been held that arbitrators are competent to prove what matters are presented before them, and what claims were or were not included in the award; also as to the time when and the circumstances under which the award was made. Morse on Arbitration, 214. It has been held, also, that he may be called to prove admissions made by the parties other than those for the purpose of bringing peace. Other holdings of like import appear in the books. On the other hand, Mr. Russell, at page 469, cites, without dissent, Shelling v. Farmer, 1 Stra., 646, as holding that “where the award was general and purported to decide all the differences, the court refused to allow the arbitrator to be called to prove that in respect of a claim made before him within the submission, he had refused to award compensation.”

An examination of authorities, those cited by counsel and many others, leads to the conclusion that there is conflict, as between the earlier and the later decisions, with respect to the conclusiveness of an award regular on its face, and that the later decisions incline to hold the rule much more strongly in the support of such awards than many of the old decisions, and to exclude the testimony of arbitrators under circumstances where before such testimony might have been admitted, although there are not wanting decisions of remote date which are in accord with the spirit of the more recent ones. But, be that as it may, it is believed that the weight of modern authority, adjudicating upon common law arbitrations, is against the admissibility of testimony by arbitrators when adduced to impeach their award. Such is the conclusion of Mr. Russell, and many late decisions are cited in support. He says, page 298: “When an award is good on its face, the cases do not all agree in showing how far the courts will allow it to be impeached by extraneous evidence of statements of the arbitrator, showing that he has decided on reasons not tenable in law. As the courts of law are now inclined to hold that awards are not to be impeached for mistakes in-law or fact not apparent on the award, they will, it is apprehended, at the present day in general reject such statements.” And this conclusion seems consonant with reason. As before stated, arbitrators are in a sense jurors. It is remarked by Mr. Russell at page 477 that: “An award for the plaintiff in an action for a nuisance will, in the court of chancery, on proceedings for an injunction to prevent the continuance of the nuisance, be regarded as highly as the verdict of a jury establishing the existence of the nuisance.” And if an award stands with as much favor as a verdict of a jury why should it not be surrounded by equal safeguards? We assume it to be now settled, as a general proposition in this state, that jurors cannot be called to impeach their verdict. The principle is distinctly held in Hulet v. Barnett, 10 Ohio, 459, where the ground is well stated by Grimke, J., as follows: “Now if there is any rule which can be considered as completely settled, and which has been framed for the purpose of setting bounds to the discretion of the court, it is that testimony of this kind should not be received. The rule is a most wholesome one, inasmuch as it is founded upon the wisest reasons of public policy. If an inquisition of this kind were to be established over the conduct of the jury, there is no knowing where it would terminate. It would produce a great deal more mischief than it could by possibility prevent. It would degrade the jurors in their own estimation, and in the estimation of the public, and they would soon lose that character of independence which gives value to the institution. The inquiry would not only be impossible in the great majority of instances, but it would work the deepest injury to the administration of justice. In those instances where the misconduct was the greatest, it would never be divulged, because those would be the very cases in which the jurors could not be prevailed upon to implicate themselves; and to permit those of the jury who were not parties to the misconduct complained of, to impeach the behavior of their fellow jurors, would open the door to every species of insinuation, and would detract from that relation of confidence which should be established among the members of the jury. The rule is a wise one which absolutely forbids the admission of such testimony.” See, also, Holman v. Riddle, 8 Ohio St., 384; Farrer v. The State, 2 Ohio St., 54; and Kent v. The State, 42 Ohio St., 426. In these two criminal cases it is sought to engraft exceptions upon the general rule, but the rule itself is not questioned, and the exceptions bear no relation to the present inquiry. As to the rule in other jurisdictions see Graham & Waterman on New Trials, 114; and authorities cited; Baylies on New Trials, 591, and authorities; and Hilliard on New Trials, section 63. Undoubtedly the infrequency of trials before arbitrators as compared with jury trials, renders the matter of less relative importance, but it is a difference of degree and not of kind. The principle is the same. Applying this rule it follows that the depositions of the arbitrators, at least in so far as their statements were sought for the purpose of impeaching the award, were incompetent. If they can be resorted to for any purpose, it is proper to add that they fully establish that the paper called “opinion” was not prepared by reason of any supposed duty to do so, but wholly because personally requested by the counsel, and from motives of courtesy to them, and that the arbitrators did not regard the “opinion” as any part of their award, but did regard the paper marked “award” as the only award and the only decision. The depositions also negative any charge of irregularity in their methods of procedure and in the conduct of their deliberations.

This conclusion makes it unnecessary to consider at length the other branch of the case. But it is not out of place to make brief reference to it. With respect to the claim that the award was void for the reason that the arbitrators did not agree upon all questions submitted to them, it was the judgment of the circuit court, and of the common pleas as well (which courts took cognizance of the “opinion” and of the depositions), that there being no question of fraud involved in the two questions not determined, and there being a clear way for the conclusion that followed on a question that was assumed favorable to plaintiff, the judgment was reached in a logical manner without the two questions on which the arbitrators did not agree being determined. That is, the questions to be found add nothing to the clear right the plaintiff had independent of them, viz.: the right of rescission. Not finding these facts would, therefore, not be prejudicial to the plaintiff, as he got all the advantages under the facts assumed, that he could have had if the facts had been found.

We see no reason to doubt the correctness of these conclusions, applying to them the rules either of logic or of law.

Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.  