
    GUSTAVUS A. FUDICKAR, Plaintiff and Appellant, v. THE GUARDIAN MUTUAL LIFE INSURANCE COMPANY, Defendant and Respondent.
    ARBITRATOR’S AWARD.
    1. Action to set aside.
    1. Presumptions in suppoi't of the awa/rd.
    
    
      a. Where all the proofs and proceedings taken by and had before the arbitrator, are not put in evidence, and a state of facts which would support his rulings in the admission and rejection of evidence and his decisions on questions of fact and law arising before him, might possibly have existed, the court will assume they did exist, and were established before the arbitrator.
    3. Error by arbitrator, what is not such as to call for setting aside his award.
    
    
      a. Where a rule was adopted at the hearing of the arbitration that no person who was expected to be a witness should be in the room during the examination of the other witnesses, and after one A. had been examined, who testified against one of the parties to the arbitration, a request by such party for leave to introduce a person Who had been in the room during the examination of A. (but who was not then expected to be called as a witness), to prove that A., after he had finished his evidence and had left the room where the arbitration was held, had said that .he expected, by his evidence so given, to be revenged on the party against whom he testified, and the ahswer of the arbitrator to such request, that under the rule he could not permit such person to be examined, even if error, is not such an error as would lead to a setting aside the award.
    
    
      b. The sending by the arbitrator to one of the parties asking for a statement of what items should have been allowed, what credited, and what were objectionable in his view, and the receipt of the statement asked for, which contained not only dates, amounts and specifications of what the amounts were charged and credited for, but also remarks as to the merits of the case, such sending and receipt being without the knowledge or consent of the other party, who, as soon as apprized of it, objected to the proceeding, whereupon the arbitrator informed him that he should not consider the statement, and on the trial of the action to set aside the award, testified, that he did not consider it; the sending of the letter and receipt of the statement does not constitute error for which the award will be set aside.
    
    Bxjt,
    
      Waiver. Even if it were material error, acts of the party (after being informed by the arbitrator that he was about to send for the statement) in calling to see if it had been received, and after its reception, examining it, abd making no objection to its reception but only claiming the right of offering proof in refutation, which the arbitrator acceded to in the event of his concluding to consider it as evidence, but the arbitrator did not consider it as evidence,'and so informed the party, waived it.
    
    3. Stipulation that either party may read from a written record of the proof s and proceedings before the arbitrator such parts thereof as he desired to put in evidence on the trial, —Effect of.
    1. Where the plaintiff reads in evidence a portion of .such proofs, and the defendant either reads none or only a part of the remaining portion, if the omission to read the portion not read constitutes a defect in plaintiff’s case, defendant may take advantage of such defect notwithstanding the stipulation.
    
    II. CONTRACT—RESCISSION OF.
    1. Justification of rescission.—Evidence in support of.
    1. Acts and transactions prior to the contract may be received, a. Where, after the making of the contract, one party does things which the other maintains justifies a rescission, such other party is at liberty to show the purpose and character of those things by proving, that before the making of the contract, the party doing the things, while acting as his agent, commenced a series of acts which ended in an injury to him, through the use of powers given by the contract, and yet in violation of its provisions.
    HI. Corporation.—Wrongful ' combination of officers with AGENT.
    1. Duty of officers.
    
    It is to recede from their position and insist- that the agent should perform his duty.
    3. Waiver of breaches, or affirmation of a contract with knowledge of prior breaches.
    
    
      a. No such waiver or affirmation can arise from acts done pursuant to a wrongful combination between the officers of a corporation and one of its agents, nor from any transaction between them under such combination.
    Before Monell, Ch. J., Curtis and Sedgwick, JJ.
    
      Decided May 2, 1874.
    Appeal by plaintiff from judgment of dismissal, entered oma decision made on a trial by the court without a jury.
    This action was tried at special term by the court without a jury, and the trial resulted in a dismissal of the complaint.
    From the judgment of dismissal the plaintiff appeals. *
    The action is to set aside the award of an arbitrator, to whom were submitted all controversies between the plaintiff and defendant. The award of the arbitrator was contained in a long document, made by him. He did not confine himself to a statement of his decision as to the rights of the contestants ; but prefaced that decision by a discussion of facts, given in evidence before him. On the trial of this action, the plaintiff did not offer in evidence the whole of the proceedings, And all the testimony, before the arbitrator; but a part of them appeared before the special term. It appeared that the plaintiff was the agent of the defendant, under a special contract made April 1, 1869, which was. as follows:
    “ This agreement, made April .1, 1869, between the Guardian Mutual Life Insurance Company of New York and G. A. Fudickar, witnesseth: That the said G. A. Fudickar has been appointed superintendent of agencies for said company in the States of Virginia, West Virginia, North Carolina, South Carolina, Florida, Georgia, Mississippi, Louisiana, Missouri, Kansas, and the counties of Erie, Niagara, Schenectady, Albany, in the State of New York, and the cities of Chicago and Milwaukee, and of the German • department of the States of New York and New Jersey, with the sole right of collecting, or having collected, premiums therein, and with the sole right of appointing and removing agents and genei'al agents in said districts.'
    ' “ Furthermore, he shall have the right to accept the premiums on policies all cash, or one-half loan against the policy, but whenever he takes half loan he shall charge the average interest for five years in advance. He shall make a report of all business .monthly, and shall settle accounts "quarterly.
    “ The company agrees to furnish all necessary supplies, to pay postage and express charges, and to comply with the laws of said States, pay all national, State and local taxes, as now in force in said States : one-half of such office rents as have been or may be agreed to, and such signs for agents as the company approve ; also for the insertion of good advertisements in prominent newspapers to the extent approved by the company.
    “The said Fudickar shall devote his time and atten- ' tion in a faithful manner to developing and extending the business of the company in the districts aforesaid, ■in accordance with the rules and regulations of the company. He shall exercise such supervision over the agents of his appointment as shall insure the faithful performance of their duties, and be responsible for the same. He shall receive as his compensation therefor thirty-six and one-half per cent. (36|) of the amount received in cash and loans for the first year’s premiums, and ten per cent, upon all renewal,- cash and loans, to be continued to the said Gr. A. Fudickar during his life, and in case his mother, Caroline Fudickar, shall survive him, then the said renewal commissions shall be continued to her during her life.
    “In addition thereto, he shall receive an allowance, which may be discontinued at the option of the company, for traveling expenses, of ninety dollars ($90) per month for the States of Hew York and Hew Jersey, fifty dollars ($50) per month for the States of Missouri and Kansas, and fifty dollars ($50) per month while actually traveling in the Southern States. It is expressly understood and agreed that in case any laws or regulations shall hereafter be passed in any of the States, counties or cities herein mentioned, as in the judgment of- the officers of the company render it inexpedient to continue business in any of them, the said officers shall have the power to discontinue their business and agencies in any-such case.
    “All contracts with agents under this agreement in aforesaid districts and places shall not be valid unless countersigned by said Gh A. Fudickar as superintendent as aforesaid, or by such other person as he may designate.
    “The appointment of agents and their compensation, although emanating from the company, are understood to be the appointments of the said Gh A. Fudickar, and the commissions and the expenses of their agencies will be charged to his .account, except as hereinbefore provided.
    
      “ This agreement being in lieu of sundry previous ones, revokes them all from this date, except that the renewal commissions upon business obtained under them (ten per.cent.) is to be continued in the same manner as provided in the contract.
    “The company, by the hand of their president and secretary, do acknowledge the aforesaid agreement to be binding on them for the term of five (5) years from . this date; but if this contract should cease to be in force, said Gf. A. Fudickar’s interest in the business of-the agents appointed by him shall not be affected by the change, but he shall further be entitled to all the renewals of the business done previous to such change.
    ‘ ‘ Signed and sealed on the day and in the year above mentioned. The apportionment in the city of Milwaukee relates only to the German department.
    “ W. H. PEOKHAM, President.
    
    [l. s.] W. T. HOOKER, Secretary.
    
    G. A. FUDICKAR.”
    The defendant had refused to allow the plaintiff to act as their agent under this contract, and had rescinded or annulled the agency, or had attempted to do so. The plaintiff claimed that this was a violation of his rights. • The arbitrator among other things, decided that the plaintiff was justly dismissed, and therefore, was not entitled to damages for his dismissal by the company.
    The plaintiff maintains in this action that the award should be set aside, for palpable and gross mistakes of law, on the part of the arbitrator, specified as follows :
    1. In that “he based his decision on several matters which occurred before the contract of April 1, 1869, was entered into.”
    
      2. In that he held “ that certain matters which had been known to the officers of the respondent for many months before the latter claimed the right to rescind its contract with appellant, and after the knowledge of which the officers made supplementary agreement with him, constituted sufficient legal ground for such rescission.”
    3. In that the arbitrator (in response to the plaintiff asking leave to introduce a person who had been in the-room during the examination of one Baldenecker, who had testified against the plaintiff but who was not then expected to be a witness, to prove that said Baldenecker, after he had finished his evidence, and had left the room where the arbitration was held, had said that he expected thereby to be revenged upon the plaintiff), stated that he could not permit him to be examined under the rule by which parties who were expected to be examined were excluded from the room.
    4. In that he decided that the defendant 16 justly dismissed the plaintiff,” and that therefore he was not entitled to damages for such dismissal.
    5. In that he decided as a mere matter of law “ that the appellant was not entitled to any payment or commission. upon first premiums, of business done or yet to be done, subsequent to his dismissal, or to future commission upon such of the business introduced by him, as might; be renewed or continued in the company, nor to any sum of money in lieu of renewal commissions.”
    6. In that, after the case was closed, the arbitrator sent to the company a letter asking them to have prepared a statement of what should have been allowed as commissions, what charges should have been credited, and what charges were objectionable in the view of the company, which letter stated that the evidence showed commissions and charges in several instances were not on the books, and that, after the statement asked for was sent, the arbitrator wished to see the books; in response to which letter a statement of the kind asked for was sent, which contained not only dates, amounts and specifications of what the amounts were charged and credited for, but also remarks as to the merits of the. case.
    
      Joseph B. Flanders, attorney, and with Augustus J. Beguier, of counsel for appellant, urged, among other things :—I.
    Among the grounds upon which it is well settled that courts of equity will set aside awards, are corruption, partiality or gross misconduct, on the part of the arbitrator (Herrick v. Blair, 1 Johns. Ch. 101 ; Roosevelt v. Thurman, Id. 230 ; Van Cortlandt v. Underhill, 17 Johns. 405 ; Perkins v. Giles, 53 Barb. 342; S. C., in court of appeals, manuscript opinion; Wood v. Aub. & Roch. R. R. Co., 8 N. Y. 160). 1. Damages awarded may be so enormous as to induce a conviction that the arbitrator must have been corrupt or grossly partial (Butcher of Croyden’s Case, 3 Ch. 76 ; 2 Vern. 251 ; l Eq. Cas. 59 ; Van Cortlandt v. Underhill, above cited). 2. If excessive damages would induce such conviction, then extreme inadequacy of damages, or a refusal to allow to a party in making up the award that to which he is indisputably entitled, would be sufficient ground for entertaining the- same conviction (Spettigue v. Carpenter, 3 Peere Williams, 361). 3. So, too, proceeding contrary to the principles of natural justice, as if without reason, they will not hear a witness (Morgan v. Mather, 2 Ves. Jr. 15 ; Van Cortlandt v. Underhill, above cited ; Ligon Ford, 5 Mumford, 10 [supreme court of appeals of Va.] ; see also Spettigue v. Carpenter, 3 Peere Williams, 361). So, too, the arbitrator having a personal interview with one of the parties in relation to the subject matter of the submission, or receiving the testimony of a witness on one side, or examining the books of any paper or written statement of one of the parties, without the presence or consent of the other party (Underhill v. Van Cortlandt, above cited; Walker v. Frobisher, 6 
      Ves. Jr. 70; Burton v. Knight, 2 Vern. 515; Lord Lonsdale v. Littledale, 2 Ves. Jr. 450 ; Medcalfe v. Ives, 1 Atk. 63; Harvey v. Shelton, 7 Beav. 455 ; In the matter of Hick, 8 Taunt. 694; Emery v. Owens, 7 Gill [Md.] 488; Knowlton v. Mickles, 29 Barb. 465 ; McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 467 ; Collins v. Vanderbilt, 8 Bosw. 313 ; Jenkins v. Liston, 3 Gratt. [Va.] 235 ; Conrad v. Massasoit Ins. Co., 4 Allen [Mass.] 120). 5. Even in the case of referees, though their conduct be held free from all actual corruption or partiality,.such practices are declared to be such misconduct as requires their reports to be set aside upon grounds of public policy (Yale v. Gwinits, 4 How. Pr. 253 ; Dorlon v. Lewis, 9 Id. 1 ; Roosa v. Saugerties & Woodstock Turnpike & Pl. R. Co., 12 Id. 298).
    II. The conduct of the arbitrator in this case, as shown by the evidence, discloses more flagrantly than any case recorded in English or American judicial history, the qualities so uniformly and severely condemned by the cases cited in the last preceding point.
    III. It is also well settled that a court of equity will set aside the award for a palpable mistake of law or of fact (Carneforth v. Geer, 2 Yern. 705 ; Ridout v. Pain, 3 Atk. 494; Kent v. Elstob, 3 East, 18 ; Richardson v. Nourse, 3 Barn. & A. 237; 5 Com. L. 269 ; Ames v. Milward, 8 Taunt. 637; 3 Com. L. 234 ; Chase v. Westmore, and Westmore v. Forbes, 13 East, 357 ; Morgan v. Mather, 2 Ves. Jr. 18; Aubert v. Maze, 2 Bos. & P. 375; Wohlenburg v. Lageman, 6 Taunt. 251; 1 Eng. C. L. 376 ; Herrick v. Blair, 1 Johns. Ch. 101; Roosevelt v. Thurman, 1 Id. 220 ; Campbell v. Western, 3 Paige, 138 ; Perkins v. Giles, 53 Barb. 347).
    IV. There are some cases in conflict with the above and breaking in on the current of decision; but it is submitted that these are exceptional, the questions in some instances arising in actions at law, in others under special statutes, and that the exceptional cases coming in conflict with the positions taken on behalf of the appellant in this action, are too few in number, and were decided with too little consideration of principle and authority, to entitle them to any weight in opposition to the adjudications and opinions cited in support of those positions. Among these cases see Winship v. Jewett, 1 Barb. Ch. 173; Jackson v. Ambler, 14 J. R. 105; Mitchell v. Bush, 7 Cow. 185 ; Giles v. Austin, court of appeals.
    V. Holding that matters which had been known to the officers of the respondent for many months before the latter claimed the right to rescind its contract with appellant—and after the knowledge of which the officers made supplementary agreements with him, thereby expressly affirming the contract in the face of the alleged breaches—were sufficient legal grounds for such rescission ; whereas the law is well settled, that circumstances which would warrant a rescission must be acted upon promptly after coming to the knowledge of him who would rescind, or they are deemed waived or condoned (Lawrence v. Dale, 3 Johns. Ch. 23 ; McNevin v. Livingston, 17 Johns. 436-7; Lawler v. Selden, 11 How. Pr. 526 ; Monahan v. Story, 2 E. D. Smith, 393 ; Hunt v. Singer, 1 Daly, 209).
    VI. Refusing to receive the testimony of Hartog in impeachment of the respondent’s witness, Baldenecker. a. The fact that the appellant had not previously asked Baldenecker, while under cross-examination, or re-called him for the purpose of asking him, if he had said, giving time, place and persons present, what it was proposed to prove by Hartog that he had said, was no ground for excluding the testimony of. the latter, inasmuch as the respondent’s objection to his testimony was not placed upon that ground, which could have been obviated if that objection had been raised (McDonald v. North, 47 Barb. 530). b. The reason assigned by the arbitrator in his volunteer objection to Hartog testifying, and upon which grounds his testimony was excluded, was insufficient, as the rule imposed by the arbitrator, that all persons who were to be witnesses should be excluded from the room, except when testifying, applied, from its very nature, exclusively to witness who were to testify to transactions which occurred before the trial commenced, relating to the merits of the controversy, and could not possibly apply to a witness called to prove a fact which had occurred while the trial was in progress.
    VH. Holding, as a legal conclusion, that the appellant “was justly dismissed, and therefore is not entitled to damages for Ms dismissal by the company,” in other words, that the respondent had a right to rescind the contract, without the consent of the appellant, for alleged breaches of its provisions on his part, was error. “ Generally, no contract can be rescinded by one of the parties, unless both can be restored to the condition in which they were before the contract was made. If, therefore, one of the parties has derived an advantage from a partial performance, he cannot hold this, and consider the contract rescinded ; but must do all that the contract obliges him, and seek his remedy -in damages” (2 Pars, on Cont. 192-3 [3 ed.]; Weaver v. Sessions, 6 Taunt. 154; Franklin v. Miller, 4 Ad. & Ell. 599; Hunt v. Silk, 5 East, 449; Beed v. Blandford, 2 Y. & J. 278 ; Dubois v. Hud. & Del. Canal Co., 4 Wend. 285 ; Tipton v. Feitner, 20 N. Y. 431 [see opinion of Selden, J.] ; Utter v. Stuart, 30 Barb. 23 ; Hunt v. Singer, 1 Daly, 209).
    VIII. Holding further, as legal conclusions : “That he (the appellant) is not entitled to any payment as commissions upon first premiums of business done, or yet to be done subsequent to his dismissal,” or “to future commissions upon such of the business introduced by him as may be renewed or continued in the company ; nor to any sum of money in lieu of commissions,” was error. These conclusions were arrived at in the face of the express and unqualified provisions of the principal contract.
    IX. In his eighth finding of fact the judge who tried this cause manifestly erred in point of law in holding “that the alleged error of the arbitrator, in sending to the defendants and procuring from them extracts from its books, was cured and waived by the plaintiff by his subsequently, with knowledge of said fact, attending upon said arbitrator and allowing him to proceed with his award, to a final decision, without having revoked or withdrawn from said arbitration, and that he is estopped by his said action from alleging any error of the arbitrator in this respect.” 1. This clearly implies that the judge held that it was then legally in. the power of the appellant to revoke the submission, and it is evident that it was upon the ground of non-revocation by the appellant that the judge decided that the misconduct referred to of the arbitrator “was cured and waived,” and that the appellant was thereby estopped from alleging any error in the arbitrator in that respect.” 2. The statute expressly provides that “ neither party shall have power to revoke the power of the arbitrators after the cause shall have been finally submitted to them, upon a hearing of the parties, for their decision” (Rev. Stat. part 3, ch. 8, tit. 14, § 23; 2 Edm. Stat. 564, 2 ed). 3. The appellant duly excepted to this finding. 4. It is manifest that the judge would not have decided as he did had he not. erred as to the power of the appellant to revoke the submission, but would have set aside the award upon the ground of the misconduct of the arbitrator, as charged and proved, had he not, under a mistake of law, adjudged the appellant estopped from setting up such misconduct. 5. This alone presents a sufficient ground for the reversal of the judgment,
    
      X. The exception was well taken by the appellant to the ruling of the judge, allowing the arbitrator to testify as to his mental action upon the statement unauthorizedly procured by him from the respondent between the close of the trial before him and the making of his award, a. “It has been said by many of the judges that it is impossible for the courts, or even for arbitrators themselves, to say what influence such statements (ex parte) may have had upon them. We must go upon the general rule which condemns such a practice” (Knowlton v. Mickles, 29 Barb. 471).
    XI. The exceptions were well taken to the ruling of the judge in reference to the questions which were allowed to be put by the respondent to the arbitrator as to bias or partiality. 1. Arbitrators cannot, more than jurors, be allowed to testify as to the conditions or operations of their minds while acting as such. 2. Partiality in arbitrators consists in action and not in mental condition. 3. The arbitrator may have intended to be perfectly upright and impartial—which is, however, in this case, conclusively disproved—and yet his conduct be most partial and reprehensible. We claim that in this case both the intent and the conduct have been in unison, and that they make up a case of misconduct unparalleled in judicial history.
    XII. The fact that the whole of the testimony taken before the arbitrator was not put in evidence at the trial in this court, does not warrant any presumption which can aid the respondent. This is not a case in which any presumption or intendment can be indulged to sustain the award, as is sometimes allowed in support of a judgment in a case on appeal. 1. At the commencement of the trial “it was agreed that each party should read in evidence such portions of the testimony before the arbitrator as he desired to be in the evidence in this case.” a. Under this arrangement the appellant put in such portions of the evidence before the arbitrator as in the judgment of his counsel established the facts which they deemed it material to prove to make out his case. Si, as thus introduced, that evidence, standing by itself, and in itself considered, does establish those facts, ike appellant is entitled to the full benefit and effect of such evidence, b. If the respondent could have explained, qualified or contradicted that evidence by other evidence which was given before the arbitrator, it wa-J incumbent upon its counsel to read it. So far as there is any presumption, it is that what the appellant proved to have been sworn to before the arbitrator was true. It is the further presumption, that if the respondent could have explained, qualified or contradicted it, by reading other evidence that was taken before the arbitrator, it would have been done. Its very neglect to attempt it makes the presumption strong that it was beyond its power to read any such evidence. c. Every rule of evidence requires that a party to a trial who has an opportunity to contradict what his adversary has proved, and neglects to do it, so neglects because such a contradiction is beyond his power. It is presumed that men in such cases are mindful of their interests, and do all in their power to protect what they conceive to be their rights. If, in such a case, they do not contradict damaging testimony against them, the presumption is that it is because they cannot, and then applies the familiar maxim, that “when no such fact appears, it is presumed not to exist” (United States v. Wilkinson, 12 How. [ U. S.] 253 ; Broom Leg. Max. 125, 6 Am. ed.).
    Miller, Beet and OpdyTce, attorneys, and Livingston K. Miller, of counsel for respondents, urged:—I.
    Error of the arbitrator would afford no sufficient ground of interference. In suits to set aside awards, the doctrine of error has no place (Caldwell on Arbitration, 373, 374, 384; Knox v. Symonds, 1 Ves. Jr. 369; Morgan v. Mather, 2 Id. 21; Goodman v. Sayres, 2 Jac. & W. 249; Van Cortlandt v. Arrowhill, 17 Johns. 408, 411, 415, 420; 2 Story Eq. §§ 1451, 1454, 1455, referring to Chase v. Wetmore, 13 East, 358).
    
    
      II. As to the alleged error in the arbitrator’s deciding that the plaintiff had no claim to commission: 1. There was no error, (a) Plaintiff broke his contract. It is a dependent contract. Faithful performance was a condition precedent to any recovery. He is proven to have been grossly unfaithful. If this is so, the condition precedent to his recovery had been broken by him. He had forfeited his contract. He who violates a contract can claim none of its benefits. It is no answer to this to say true, he had broken his contract, but he kept it faithfully for one year, and, therefore, is entitled to the renewal commissions of that year’s policies. Hot at all. It was a five years’ contract, and one year’s fidelity will not cover four years’ breaches. Partial performance is no ground for any recovery. Huntington v. Chaflin, 10 Bosw. 262; Lautry v. Parks, 8 Gow. 63; Marsh v. Rulesson, 1 Wend. 514; Sickels v. Patterson, 14 Id. 257; Bonesteel v. Mayor, 22 N. Y. 162; Walker v. Willard, 29 Id. 375; Niblo v. Binsee, 44 Barb. 54; Smith v. Brady, 17 N. Y. 172; Tompkins v. Dudley, 25 Id. 272; Husted v. Craig, 36 Id. 221; Chase v. Hogan, 3 Abb. Pr. N. S. 57; Ellen v. Topp, 6 Exch. 424). (b) It is to be presumed, however, that the arbitrator allowed the plaintiff the benefit of this contract, and of these commissions, for renewals, as upon a continuing contract, for plaintiff introduced evidence, and the arbitrator received, it as to the value of these renewals on the commutation principle,' and acted on it; he considered the evidence, and, as every intendment must be' in support of the award, we say there is but one conclusion to arrive at, viz.: that after allowing plaintiff these renewal commissions on the commutation basis .the balance against plaintiff, over and above all this amount, exceeded two thousand dollars, and the arbitrator so found, (c) In either event, the award is right, but, right or wrong, it was one of the matters left to the arbitrator, and whether it was a question of law or fact his decision is final.
    III. That testimony *to impeach Baldendecker was properly excluded. The arbitrator was clearly right in conscience. His reasons may be right or wrong—we think they are right—but technically he was right in refusing to allow an impeachment on a collateral question, to which the witness sought to be contradicted, had not been questioned. Authorities on this point are needless.
    IV. This was no error in the arbitrator sending to defendants for a statement from their books. This error, if an error, was one in plaintiff’s favor. He had proved no account for commissions or renewal policies. This the arbitrator sent for. Was this error ? Observe, the statute does not make the reception of improper evidence "ground of error. It is only its exclusion. Therefore, we say:—{a) If improperly admitted, it is no eiror. (&)• If the books were not in evidence, the arbitrator had a right to call for them, (c) And, finally, any error in this respect, if it was an error, was waived by plaintiff. The plaintiff took the chances on this evidence, and, having acquiesced in its receipt, cannot now complain if it resulted to his disadvantage.
    V. We submit that none of the errors alleged are grounds sufficient, at common law, or under the statute, to impeach, or set aside, the award. We select a very few from many authorities (Emmett v. Hoyt, 17 Wend. 410; Smith v. Cutler, 10 Wend. 589; Viele v. Troy & Bost. R, R. Co., 21 Barb. 382; see pp. 395-6; Dater v. Wellington, 1 Hill, 319; Batler v. Mayor, Id. 489; Perkins v. Giles, 53 Barb. 342; affirmed in court of appeals, 50 N. Y. 228 ; Moorewood . Jewett, 2 Robt. 496; Ott v. Schroeppel, 1 Held. 482 Trumbull v. Martin, 37 How. Pr. 20; Burchell v. Marsh, 17 How. [ U. S.).
   By the Court.—Sedgwick, J.

The various alleged errors will be considered in their order.

As to the first.

The arbitrator no doubt did, in the prefatory part of the paper, which contained the award, discuss such matters, and did find that, in respect of them, the plaintiff was in fault. No doubt they influenced his mind in making Ms decision. But the plaintiff must show that he had no right to consider them. All the presumptions are in favor of the award. There was an omission to show all the facts that were before the arbitrator. If evidence were given that, after the making of the contract, the plaintiff did certain things which the defendants maintained justified his discharge, or the rescinding of the agreement, the defendants were at liberty to show the purpose and character of such things, by proving that, before the making of the contract, the plaintiff had, while acting as agent, commenced a series of acts, which ended in an injury to the defendants, through the use of powers given by the contract, and yet in violation of its provisions. The plaintiff, by the contract of April, 1869, agreed to “devote his time and attention in a "faithful manner to developing and extending the business of the company.” The company had a right to show that he had not devoted his time in a faithful manner to their interests, but had sought Ms own instead. His former transactions were competent evidence on this point, and such former transactions could properly have been considered by the arbitrator. He did make such use of the occurrences before the contract, although in a certain way he disclaims passing upon the plaintiff’s intention, while he “decides upon the character of his acts.” As the plaintiff does not show that these things were admitted before the arbitrator, by a clear and gross mistake of law, the award should not be set aside on that ground.

As to the second.

This does not correctly state the law, in so far as it includes the case of the officers of a company, by a wrongful combination with an agent of the company, allowing the latter to depart from his obligations. In such case it would be the duty of the officers to recede from their position, and to insist that the agent perform his contracts. But the arbitrator does not say the plaintiff was properly dismissed on these grounds alone. He says that these facts, and others which he alludes to, are “not an unfair presentation of a great mass of incidents brought out in the course of the arbitration.” The testimony as a whole, which we have not before us, may not only have shown other and sufficient evidence to support the arbitrator’s position and argument, but may have shown that the officers did not affirm the contract in face of the alleged breaches, excepting that officer who, as the arbitrator thinks, was acting wrongfully in connection with the plaintiff against the company.

As .to the third ground.

Even if there was error here, yet it is one that would not lead to a reversal, if it appeared on a bill of exceptions, or in a case. The form of the request, and what, the arbitrator said, does not present a legal exception, even if an award could be set aside for error simply.

As to the fourth ground.

The plaintiff has not affirmatively shown that the arbitrator committed a mistake in thus deciding. So far as the reasons for this conclusion were given, they tend to support it; and whether they were of themselves sufficient to that end, is unimportant, because the arbitrator shows that he relied on other facts. What these other facts were does not appear, and we cannot presume, but it must be shown at least that the evidence, as a whole, was not sufficient. It is manifest that the contract was not incapable of rescission by the defendants, if the plaintiff had given a sufficient cause. for it.

As to the fifth ground.

It does not appear - that the arbitrator made this decision as a mere matter of law. His decision in this respect may have been from facts given in evidence; payments on account; a release ; a special agreement as .to them. Without having the same case before us that the arbitrator had before him, we cannot hold that it did nof justify his decision on these points.

It will be well right here to consider the effect of a certain stipulation made on the trial. The plaintiff claims the effect of such stipulation to be, that if the defendant could explain, qualify, or contradict those portions' of the proof before the arbitrator which were read in evidence on behalf of the plaintiff, by other portions of the proof before the arbitrator, the burthen of introducing such other proof fell on him.

The stipulation in question was, “that each party should read in evidence such portions of the testimony before the arbitrator as he desired to be in evidence in this case.” This stipulation did not .take from the plaintiff the burthen of sufficiently proving his case. If the omission of a part of that evidence from the plaintiff’s case constituted a defect in that case, there was nothing in the stipulation to prevent the defend-’ ants taking advantage of the defect.

As to' the sixth ground.

. The learned justice at special term found as a fact that this alleged error of the arbitrator was cured and waived by the plaintiff, by his subsequently, with knowledge of the fact, attending upon the arbitrator and allowing him to -proceed with his award to a final decision, without having revoked or withdrawn from said arbitration, and that he is estopped by such action from alleging any error of the arbitrator in that respect.

The evidence upon which this finding was made was conflicting. The plaintiff testified, that the extracts from the books, were procured by the arbitrator, after the matters in controversy had been submitted for his determination. That they were so procured without the knowledge or consent of the plaintiff, and when procured, were objected to by him'.

But the arbitrator, who was examined as a witness, testified, that previous to sending for the extract, he •informed the plaintiff of his intention to do so ; that the plaintiff called several times to ascertain if they had been received. When they were received, the plaintiff saw and examined them.. He made no objection to their being received, but claimed the right of offering proof in refutation, which the arbitrator told him he should have, in the event of his, the arbitrator’s deciding to consider the extracts as evidence. Subsequently the arbitrator informed the plaintiff, that he had nottaken the extracts into consideration, and had wholly ignored them.

The evidence of the arbitrator was sufficient to justify the finding at the special term ; and as the learned justice must have disregarded the plaintiff’s evidence, we should not, upon well understood principles, disturb the conclusion, unless it is manifestly unsupported.

But independently of this, the plaintiff’s evidence, even if it was not contradicted, would not, in my opinion, furnish a sufficient reason for vacating the award.

A court of equity, following the statute (2 Rev. Siat. 542, § 10), will vacate an award for any misbehavior of the arbitrator, “by which the rights of any party shall have been prejudiced.” If the alleged misconduct was of a nature not calculated to, or which did not in fact, influence the judgment of the arbitrator, it cannot be claimed, that any right of a party has been injuriously affected.

In Smith v. Cutler.(10 Wend. 589), the court say : “ The terms misconduct and misbehavior, as used here, imply an intention to do wrong.” Therefore, if it cannot be seen that there was such intention, no prejudice to the rights of the party can be claimed.

In Herrick v. Blair (1 Johns. Ch. 101), the arbitrators, after a witness had been examined, and they were left to deliberate, called the witness again, and without the presence or knowledge of the parties, examined him as to matters material to the controversy ; it was held by the chancellor, that nothing was done from which misconduct could be inferred.

It did not appear that the witness did more than to explain his former testimony, and the proceeding, although an irregularity, was considered too slight and immaterial to call on the court to interfere and set aside the award.

In Turnbull v. Martin (2 Daly, 428), it was objected that the arbitrators had received ex parte affidavits, but the court did not consider it such misconduct or misbehavior as would justify setting the award aside. And they say, that the statute by those terms, contemplates acts evincing unfairness, or contrary to all the principles of a just proceeding.

And in Wood v. Auburn & Rochester R. R. Co. (8 N. Y. 160-168), it was held that a charge of corruption or partiality of arbitrators, must be plainly made out. There it was proved, that the plaintiff had interviews and made statements to one of the arbitrators before he was chosen, calculated to favor his case. But it was considered insufficient to establish the charge.

The arbitrator not only informed the plaintiff that he should not consider the evidence, but testified that lie did not consider it in making Ms award. This, if believed, must render the irregularity, if it was such, too slight and immaterial to justify any interference by the court.

The plaintiff failed, I think, to establish by proof that there had been any misconduct or misbehavior of the arbitrator by which the rights of the plaintiff were prejudiced. Nor was there any act of the arbitrator from which any such misconduct could be inferred. The burden of establishing this was upon the plaintiff, and having failed to do so, the judgment for the defendants was proper.

This court might have refused to entertain this action on the ground, that as the submission required the judgment on the award to be entered in the supreme court, the remedy should have been sought in that court (Toppan *. Heath, 1 Paige, 293). But the objection was not taken- below, and will not be considered here.

There were exceptions to evidence, which I have considered, but do not think any of them well taken.

The judgment should be affirmed, with costs.  