
    Schultz v. Halsey.
    Where an award, signed and sealed by two arbitrators, after describing themselves as persons to whom the matters were submitted, proceeded to state that they having heard the proofs, &c. of the parties, and examined the matters in controversy, thereby made their award setting it forth; it was held that parol proof was competent to show that a third arbitrator, to whom with those two the matters were submitted, was present at the hearing and final submission of the cause.
    Where a submission to arbitration under seal, recited a controversy arising under a contract, dated March 20th, and the award was upon a controversy arising under one dated March 21st, and both instruments expressed a dispute on the same sub jeet, there being no pretence in the pleadings or evidence that there were two contracts or two disputes between the parties, it was held, that the variance was properly disregarded at the trial.
    After three arbitrators have heard the proofs, &c. of the parties, and the matter has been finally submitted to them, and they have adjourned to a fixed time to make their award, the absence of one at that tune will not prevent the other two from proceeding and making a valid award.
    (Before Oaklet, Ch. J., and Paine, J.)
    Jan. 16;
    Jan. 26, 1850.
    The complaint in this cause claimed damages for the defendant’s breach of covenant in not furnishing the plaintiff with steam power for his manufactory in the lofts of the premises, Hos. 58 and 60 Yesey street, pursuant to the terms of a lease thereof to him by the plaintiff, dated March 21,1848. The complaint was verified July 3,1848.
    The answer, among other things, set up an arbitration between the parties respecting the matters in controversy in this suit, and an award made by two of the arbitrators, on the first day of July, 1848, by which they found that the plaintiff had sustained six cents damages, by reason of the breach of covenant in question.
    The reply stated, that the arbitrators did not hear the proofs and allegations of the parties ; and that the plaintiff revoked the submission in due form, before the cause was finally submitted to the arbitrators.
    The cause was tried before Saítofobd, J., April 11th, 1849. The plaintiff proved the lease, and that the defendant did not furnish the steam power stipulated for. He also gave evidence as to the amount of his damages in consequence of the breach.
    The defendant proved the execution of arbitration bonds between the parties, dated June 26th, 1848, by which they submitted their controversy as to the amount of damages sustained by the plaintiff, by reason of the defendant’s not furnishing to him steam power in pursuance of a contract dated March 20th, 1848, to the arbitrament of Charles Fowler and John H. Eigby, and to a third arbitrator to be chosen by them. The bond recited that the defendant had no claim on the plaintiff for rent under the contract, by reason of his not performing that part of it relating to steam power. The two arbitrators named, on the same day appointed W. A. Kentish as the third, and his appointment was assented to by the parties on the same day, both being in writing.
    The defendant then proved an award in writing under seal, signed by Fowler and Kentish, two of the arbitrators, dated July 1st, 1848, in these words, viz.
    “ To all to whom these presents shall come or may concern, we the undersigned, Charles Fowler and William A. • Kentish, to whom was submitted as arbitrators the matters in controversy existing between Joseph Schultz and Samuel F. Halsey, as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the twenty-sixth day of June, one thousand eight hundred and forty-eight, more fully appears.
    “ Now, therefore, hnow ye, that we, the said the arbitrators mentioned in the said bonds, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing, that is to say, the said Joseph Schultz has sustained damages by reason'of the said Samuel F. Halsey not furnishing the said Joseph Schultz with steam power, in pursuance of a contract signed by him, dated March 21st, 1848, and all matters relating thereto to the sum of six cents.”
    The award was duly witnessed, and a duplicate was delivered to the defendant the morning of the first of July. The plaintiff about nine o’clock A.M. of that day, served on the defendant and the three arbitrators, a revocation in writing of the submis- * sion, and refused to recognize their powers thereafter. Nevertheless the two arbitrators completed and signed their award; after that service, Rigby refusing to act further with them. Evidence was given on the part of the defendant to prove, that the cause was finally submitted to the arbitrators, upon a hearing of the parties, for their decision, on the 30th day of June, 1848, and on the part of the plaintiff to prove, that the cause was not so finally submitted on that day. The plaintiff objected to any evidence by parol, that the cause was submitted to the three arbitrators, as contradicting the award, which recited that it was submitted to two only. The judge overruled the objection.
    The plaintiff’s counsel asked the court to charge the jury, that the award is conclusive that the three arbitrators did not hear the proofs and allegations of the parties, and is therefore void. That the award does not recite truly the bond of submission, and therefore is a void award under that submission. That it not having been shown that the award was ready to be delivered to the parties, on or before the Jth day of July, 1848, as required by the bond of submission, the award is therefore void.
    That the arbitrator, Rigby, not having wilfully refused to meet and discuss what the award should be, but because he supposed Ms power revoked; the absence of Rigby, on the final making of the award, makes the award void. And that there being no evidence of notice to Rigby by the other arbitrators, of the time when and place where they would meet to make their award, the award so made is void, notwithstanding he refused to go on previously.
    
      The court refused to charge the jury as requested, and the plaintiff’s counsel excepted.'
    The court charged the jury, that the defendant was liable for the damages occasioned by the breach of his covenant, unless the claim was barred by the award. He left it to the jury to determine on the evidence, whether the cause, after having been left, to arbitration, under the arbitration bond in evidence, was finally submitted to the arbitrators upon a hearing of the parties, on the 30th of June, 1848, for their decision; and instructed them, that, if they found the cause had been so finally submitted on that day, the defendant was entitled to their verdict. If it were not, then the plaintiff was entitled to recover such damages as he had proved. The plaintiff excepted to the charge as to the arbitration. The jury found a verdict for the defendant, arid the plaintiff appealed from the judgment.
    
      F. 8. StaWhneeJit and T. G. Taloott, for the plaintiff.
    
      W. Silliman, for the defendant.
   By the Court. Oakley, Ch. J.

The defence in this case rested upon the submission of the matters in controversy to arbitration, and an award made under the submission.

The first question raised is upon the recital in the award, which speaks of two only of the arbitrators having heard the proofs and allegations of the parties, whereas the evidence on the trial showed that all three were ¡rresent. It was objected by the plaintiff that this evidence, being by parol, was inadmissible. We think the fact might be proved by such evidence. It does not contradict the award or alter it in any respect. The recital in the award is true, so far as the facts are stated. The statement is consistent with all three of the arbitrators having heard the proofs and allegations.

The next objection is, that the dispute decided by the arbitrators, was not the one submitted to them. That is, the bond of submission states a controversy arising under a contract dated March 20,1848, and the award is upon one dated March 21,1848. We think this variance was rightly disregarded. The statement of the question in dispute in the bond and in the award, shows that the latter was identically the same with the former, the pleadings in the cause show that the contract out of which it arose, was dated March 21,1848, and there is no pretence that there ever was more than one contract or more than one controversy between the parties.

The only remaining point that requires our notice, is the omission to prove the delivery of the award to the plaintiff within the time prescribed. It is a sufficient answer to this that there is no issue upon it made by the pleadings. If there were, we should hold that his attempted revocation of the submission was a waiver of the requirement for the delivery of a copy to him.

A question was made as to Rigby’s absence when the award was signed. He was present at the hearing and final submission of the matter, and met with his associates pursuant to. appointment, to make their decision. His absenting himself on their proceeding to make it, did not affect its validity, whether his absence was Giving to his supposition that the submission was legally revoked, or to his having ascertained what the award was to be. Judgment affirmed.  