The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-02-28

submission, and contains the honest dc
cision OF the arbitrators, after q full ant
fair hearing Of the parties, Court OF
Equity will not set ii aside for error
either in law or fact. A contrary cours-
would be substitution OF the judgment
of the chancellor in place of the judges
chosen by the parties. aud would make
ain award the commencement, not the
end OF litigation.
In order" says Lord Thurlow, 0inox
V. Symmonds, j. yes. ,Fr. 300, ''to In
duce the court to interfere, there must
be something more than an error of judg-
ment, such as corruption in the arbitra-
tor, or gross mistake, either apparent,
on the face Of the award. or be- made
out by evidence; hut in case of mistake,
IL must he made out to the satisfaction
Of the arbitrator. and that IL il had not
| happened he should have made diff.
ferent award"
Courts should he careful to avoid a
wrong tsa Of the word mistake" and,
by maxi IL synonymous with mere err
ror of Judgment, assume TO themselves
an arbitrary power over awards The
same result would follow IL the court
should treat the urbitrators as guilty OF
corrupt partially, merely because their
award is not such an ono as the chancel-
lor would have given. We are NIL too
prone, perhaps, TO imputc either weak
ness of intellect or corrupt motives to
those who differ with us in opinion"
The question, then resolves itself into
question of fact.
The insured and the insurer not being
able TO agree upon the amount of the
loss. resort was had TO the arbitration
clause in the policy. The insured pro-
posed as his arbitrator II. II. Schenck,
of Tynchburg. The insurer proposed
name of its arbitrator. The person
named was promptly objected TO 10y the
assured the name was withdrawn, and
A C. Westbrook, of Atlanta, was named
and was accepted in his stead. The
bill is filled with grave charges against
the character and judgment of this arbi-
traitor. But the record fails to disclose
any evidence whatever rejecting upon
his character, either as an experienced
or an an honest man. The two arbitra-
tors having been sworn according to
law, proceeded TO select an umpire to de-
eide between them in case they should
differ. This umpire was selected before
they had begun, possibly, certainly before
they had compiled their own appraise-
ment, and very properly. Then, before
the possibility of heated discussion over
differences of opinion, they could more
easily agree upon an umpire. A gentle
man from Richmond was selected. His
business engagements compelled him to
decline. Thereupon two names were
submitted of persons resident in Balti-
more. Robertson, the insured, then COM
municated with Oppenheimer 81 his
friends and creditors in the city, giving
them the names and addresses of these
two persons, stating his purpose in ask
ing about them, and requesting advice
with regard to them. In reply he was
advised to select /. George Baetjer, one
of the persons named. He was then Sc
lected as umpire After his selection.
Westbrook, who, according to the evil
dence, had no personal acquaintance
with him, wrote to know If he would
serve. He replied asserting to act. And,
having business, attending court as o
witness in county of Virginia, and 9th
er business in Roanoke, he called at
Lynchburg on his way home and found
the arbitrators about concluding their
work. He thereupon took his oath as
umpire and, the arbitratons having diff
fered, he concluded the award The bill
contains grave charges against him also,
but the great preponderance of the evil
dence, including the concurrent opinion
Of witnesses Of the highest responsibility
and business character in Baltimore,
who knew him, and had full opportunity
Of knowing him for years, establish his
character as man OF high integrity,
great business capacity, and large ex-
perience. In the estimate of losses by
fire he had been frequently employed
both by insurers and the insured, and
his opinions were valued and respected.
In his pleadings and in the argument, the
complainant charged that these two men,
Westbrook and Baetjer, were profession
al arbitrators, hirelngs Of insurance
companies and obedient to their behests,
who had been foisted upon the complain
ant, fraudulently, to his wrong.
The record shows no justification for
charges Of this kind. The arbitrators
were sworn in on the 18th of April, 1894
They made their finding on the 21st.
The umpire made his award on the oath
of that month Every fact concerning
the residence, business character, en-
ployment and relation of Westbrook and
of Baetjer were known to or were within
easy reach OF the complainant. But he
having made no objection to Westbrook,
and having interviewed actively to Sc
cure Baetjer, made no sign Of disapprov-
al during the period of the arbitration
and award. Clearly he waited on the
event. The true test Of the. award is
this: Is this of so extravagant a char
acter as to warrant the conclusion that
it was found and concluded from n
partisan bias toward one Of the parties
If so, under the law it cannot stand.
We have gone over the testimony with
great care and cannot see anything
which can lead to such a conclusion. AS
has been seeen, the umpire is a man Of
character. experience and ability. He
went carefully over the stock, which had
been arranged in parcels, examining
specially each parcel and putting his
valuation upon it. He differed, it is true,
with some merchants in that line of bust