
    
      Blaney Parnell v. Jos. B. Parnell et al.
    
    
      An award made by a majority of arbitrators is good.
    
      Before Withers, J. at Darlington, October Term, 1848.
    The parties (B. and J. B. Parnell) had a litigation pending in the Court of Equity, and they agreed to refer it to arbitration. A bond was accordingly executed by defendant, in the condition whereof the terms of arbitration were specified. The action was brought by the plaintiff, upon the bond: defendant craved oyer, and set out the condition, which, after reciting the pendency of the proceedings in Equity, continued.
    “ And, whereas, the said parties, &c. have agreed and stipulated to and with each other, to refer all the several matters and equities in dispute in this case, &c. to the award and arbitrament of the following persons: Wiley J. Floyd, W. H. Wingate, Samuel Wilson, and Jacquiline Gee, who shall be authorized, in case of disagreement, to call an umpire” — and the defendant averred, that the said arbitrators and an umpire did not make an award. Plaintiff’s replication set out the award, and averred that all the arbitrators sat on the arbitration ; that three of the four signed the award — that the fourth disagreed — and that the award required James B. Parnell to pay to plaintiff a certain sum named, which he had refused to do.
    To this, defendants demurred and plaintiff joined.
    The question, therefore, was upon the construction of so much of the bond as has been above set out — whether, upon one of the four arbitrators disagreeing with the other three, an umpire was to be called in; or else, whether the whole four must agree, before it could be said that an award had been made in pursuance of the submission.
    His Honor overruled the demurrer, and held that the award set forth in the replication was valid and binding. This was in effect deciding that the majority of arbitrators were, according to file true construction of the submission, invested with power to make an award — that the “disagreement” which was to operate the necessity of calling in an umpire, had not occurred when three out of four arbitrators ratified an award.
    He said he thought this opinion well supported by the idea of an award, and that of an umpire — by the consideration, that if an umpire had been called in and had agreed with the dissenting arbitrator, then one of two consequences must follow, viz: either the award now relied upon would have been good as the act of a majority, or else no award at all could have been made, except by unanimous agreement of the five: That the construction urged by defendants would practically make the submission an idle affair, since one man of the four could prevent an award, and cause an umpire to be introduced, who, when he came, could add nothing to the prospect of a decision. That he found himself aided by what is understood to be the inclination of Court to carry out, if possible, the final end of an arbitration, to wit: — an adjustment of differences by the contract of parties; which inclination seems to be announced and recognized in our own case of Mulder v. Cravat.
    
    3 Bay ’
    2 MILLS,217. 2 Breavard, 380, 1 McC. 137
    That whatever may have been, or may now be, the rule adopted by the English Courts upon the matter involved herein, he thought his judgment dictated and sustained by our cases of Lockhart v. Kidd, Leatherwood v. Woodruff, Black v. Pearson.
    
    The defendants moved the Court of Appeals to reverse this decision, and for a new trial.
    1. Because the presiding judge erred in holding that an award made by three aibitrators was a compliance with the terms of submission to four.
    2. Because his Honor held that the disagreement of one of the four arbitrators to the award of the remaining three, was not such a disagreement as to require the decision of an umpire, provided for in the terms of submission, in case of disagreement among the four.
    3. Because the submission being a matter of contract between the parties, the defendant had a right to insist on a strict compliance with its express terms, as a condition precedent to his liability upon the arbitration bond, and his Honor should, therefore, have sustained the defendants’ demurrer.
    Law, for the motion.
    
      Dargan, contra.
   O’Neall, J.

delivered the opinion of the Court.

Our Courts have very properly departed from the rule of the English Courts, requiring unanimity in arbitrators, or a decision by an umpire. They have adopted the rule of the civil law, and of reason, and have held that an award made by a majority is good. I am not aware that there is any difference, in the rule, when a matter is referred, under rule of Court, and when by the contract of the parties. Each is a submission by the parties, and may be regulated by the terms of the rule in one case, and by those of the contract, in the other. When no precise and distinct directions are given, then a general rule common to both applies.

The cases cited by the Judge below are conclusive of all questions in this matter. Lockhart v. Kidd, and Leatherwood v. Woodruff, were decisions on awards made under rule of Court. But in Pearson v. Black, the reference was by contract. In all of those cases the Court held, in conformity to an early decision made in 1804, in Powell v. Travilla, (and which cannot now be found,) that an award made by a majority of arbitrators is good. Forty-five years of uniform acquiescence in the rule, even if we were dissatisfied with it, would prevent the Court from disturbing it. But neither we nor our predecessors have ever felt or expressed any dissatisfaction.

The motion is dismissed.

RichardsoN, J. — Evans, J. — Wardlaw, J. — and Frost, J.- — -concurred.

Motion refused.  