
    Lewisburg.
    M’Cormick v. Blackford & Son.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    Arbitrators, to whom a cause is referred by rule of court, have a meeting, and hear part of the evidence; and adjourn to enable the parties to take the testimony of a particular witness. Before they meet again, one of the parties writes to one of the arbitrators requesting them to meet about a time specified; stating that he wished to be present, and that he had papers which would throw light upon the subject. The deposition of the witness for whose testimony the adjournment of the arbitrators took place, having been taken in the mode agreed upon, the arbitrators at the request of one of the parties, meet and make their award, in the absence of the party who had written expressing a wish to be present, and without any notice to him; and before the time he had specified. Held : This was misbehaviour in the arbitrators; and the award should be set aside.
    
      Blackford & Son brought an action of assumpsit in the Circuit Court of Page, against M’Cormick, which, with two other suits depending in the same Court, one by M’Cormick v. Blackford, and the other by the same plaintiff against Blackford Sp Son, was by a rule of Court referred to arbitrators, whose award was to be entered as the judgment of the Court. The arbitrators returned their award, which M’Cormick moved the Court to set aside on the ground of misbehaviour in the arbitrators. The three arbitrators were examined as witnesses on the motion. The first, A. R. Barbee, stated: That about the month of June 1841, the arbitrators met together in the presence of the plaintiffs and defendant; at which time the parties laid before the arbitrators their papers and accounts touching the subject of reference: that at this meeting the arbitrators disposed of nearly the whole matter in controversy: that a controversy about an item of “ patent fees” was the principal matter remaining to be adjusted : that M’Cormick claimed “patent fees” in this way: He alleged himself to be the holder of a patent right taken out for an improved mould-board: that Blackford & Son were iron manufacturers, and amongst other things manufactured the mouldboard upon M’Cormick’s alleged patented plan. M’Cormick alleged that the plaintiffs were his agents about his patent fees. That fees were, for a time, charged to such persons as bought the mouldboards of Blackford & Son; and by them, for the same time, credited to M’Cormick: that after a time Blackford & Son ceased to regard the alleged claim of M’Cormick to his patent right, and continued to manufacture the mouldboards, without reference to his claim for patent fees. That at the meeting in June 1841, the arbitrators adjourned to no particular day for the purpose of procuring the evidence of F. Holtzman; and of seeing the ware books of Blackford & Son, that they might ascertain the number and size of the mouldboards manufactured by Blackford & Son: that the arbitrators did not prosecute the investigation into the claim of the patent fees, because they considered that the arbitrators had, under the law of Virginia, no right to enquire into infractions of a patent right. That the arbitrators afterwards proceeded to a final decision, after the evidence of Holtzman had been taken, in the absence of M’Cormick; T. T. Blackford, one of the plaintiffs, being occasionally present, and having requested the arbitrators to proceed to make their award. Of this meeting M’Cormick had no notice, so far as witness knew. That a few days before the final meeting of the arbitrators, he received a letter from M’Cormick expressing a wish that the arbitrators should convene in the fore part of the then next week, in order to make an award, and that M’ Cormick might be present; and saying that he had papers which would throw light upon the subject, which he would bring with him. That the second meeting took place several days before the time indicated in M’Cormick’s letter; and that the ware books were never at any time produced.
    
      The second witness, G. Jordan, stated: That the arbitrators had a meeting with the parties; and according to his recollection, were ready to dispose of the whole subject referred, except such portions of it as the parties desired to have the evidence of Holtzman upon: and that M’Cormick desired the production of plaintiffs’ ware books; and that the arbitrators decided that to be improper, as only connected with the patent fees: that the parties agreed that Holtzman''s sworn answers to written questions propounded to him by the plaintiffs and the defendant, should be taken under the supervision of G. M. Pennybacker, one of the arbitrators. That the claim of patent fees was the principal matter in controversy : that in regard to this matter, it appeared that up to a given time Blackford & Son kept an account of the fees due M’Cormick for the use of his alleged patent : that they, at the expiration of that time, having found great difficulty in collecting the patent fees from their customers, who denied McCormick's right, gave M’Cormick notice that they would no longer charge the patent fees; and from that time forward no further account was taken of those fees. That in settling the subject referred, the arbitrators credited M’Cormick with the patent fees up to the time Blackford Son had given him notice; and they refused to credit him for patent fees after the notice. That Blackford Sf Son offered M’Cormick access to their books to ascertain the mould-boards they had made. That early at the first meeting the arbitrators decided not to go into the question of the alleged violation of McCormick’s patent; and therefore did not look into the ware books; M'Cormick insisting, notwithstanding the decision, that the ware books should be produced to shew that the plaintiffs were his agents. That there was no controversy about the account of patent fees as kept prior to the notice given by plaintiffs to defendant. That at the first meeting the arbitrators adjourned without day, and convened the second time at the instance of T. T. Blackford one of the plaintiffs, without notice to M’Cormick, as far as witness knew.
    The third witness, G. M. Pennybacker, stated : That at ^10 frst meeting, the arbitrators were ready to dispose of the whole subject, except the price of certain iron charged to M ’ Cormiclc: that the plaintiffs and defendant agreed to take the evidence of Holtzman touching the price, by written interrogatories and answers: that the interrogatories of plaintiffs were drawn up and delivered to" the defendant, who was to take them home and prepare his interrogatories, and then send both sets of interrogatories to the witness, who was to attend to the taking the answers on oath; and that witness did so attend. Witness understood from the parties at the first meeting, that they only desired the evidence of Holtzman to be taken as aforesaid, and when taken the evidence would be complete. That the evidence of Holtzman was taken on the 10th of September 1841, and the award made on the 11th. That T. T. Blackford was present at the taking of Holtzman,s testimony; and occasionally present at the second meeting of the arbitrators; which second meeting was convened at his request; M’Cormiclc having no notice of that meeting, so far as witness knew. That the ware book was not inspected, but if the arbitrators had deemed it proper to inspect it, they could easily have had access to it.
    Upon the hearing of the motion at the September term of the Court in 1844, it was overruled, and the Court entered up a judgment according to the award. Whereupon M'Cormick excepted to the opinion of the Court refusing to set aside the award; and applied to this Court for a supersedeas, which was awarded.
    
      Patton, for the appellant, submitted the case.
    No counsel for the appellees.
   Cabell, P.

delivered the opinion of the Court.

It satisfactorily appears to the Court that the arbitrators, after having convened the parties before them, and received a part of the evidence offered by them, and before they had made up their award, adjourned for the purpose of enabling the parties to take farther evidence, but without appointing any time for their future meeting. It farther appears that one of the arbitrators, after-wards, but a few days before their final meeting, received a letter from the appellant, expressing a wish that the arbitrators should meet in the early part of the then next week, in order to make up their award, and stating his desire to be present at such meeting, and that he had papers which would throw light on the subject, and which he would bring with him. It farther appears that, notwithstanding this communication by the appellant to one of the arbitrators, they had a second meeting, at the request of the appellee, several days before the time indicated as aforesaid by the appellant, and that, at that meeting, they proceeded finally to make up their award, in the absence of the appellant, and without any notice to him of the said meeting. The Court is of opinion, that it was misbehaviour on the part of the arbitrators to make up their award under such circumstances ; and that the award ought to have been set aside. The Court is therefore of opinion, that the Court below erred in entering up judgment according to the said award. The judgment is therefore reversed with costs, the award set aside, and the cause is remanded for farther proceedings.

Baldwin-, J. dissented.  