Hook v. Philbrick

There are two objections to the award in this case, either of which is sufficient to defeat the action.

In the first place, notice should have been given to the defendant, of the time when the appraisal was to be made. At the meeting in the year 1846, both parties attended, but nothing was done because the defendant wished the advice of counsel concerning the bond. Upon this, the parties separated. There was no adjournment of the hearing, but a mere separation without any understanding, or agreement about a future meeting. Subsequently, without any notice to the defendant, and at the request of the plaintiff, the arbitrator made an appraisal of the land.

Upon general principles, some notice of the time and place of hearing, by the referee, should have been given. Parker, J., Abbe v. Norcott, 8 N. H. Rep., 53. This was a matter, in which the defendant had an interest, concerning which, he ivas entitled to make suggestions and arguments to the referee, and upon the most obvious principles of justice and fair dealing, he had a right to an opportunity of being heard. An award made under a rule of court, may be set aside for such an irregularity as want of notice of the meeting. Anon., 1 Salk., 71. If arbitrators, having proceeded in a reference, inform the defendant, present at the meeting, that they would suspend their proceedings till books of accounts had been examined, but afterwards make an award in his absence, without examining the books, the award will bo set aside, the court holding that at all events, the defendant should have had notice that the ai’bitrators considered it unnecessary to inspect the books. Pepper v. Gorham, 4 J. B. Moore, 148. Where the defendant’s attorney, swore he understood the arbitrator meant to call another meeting, the award was set aside. Dodington v. Hudson, 1 Bing., 384. In an anonymous case, 2 Chitty, 44, on a reference of an action for not repairing a house, the arbitrators made their award upon a view of the premises, without calling the parties before them. The court set asido the awrard, and Lord Ellenborough said, that although the premises might almost tell their own tale, yet there might be other facts which should be inquired into, such as payments by the party, excuses for not repairing, &c. In the case *300of Bedington v. Southall, 4 Price, 232, an arbitrator. examined one of the defendant’s witnesses, on the part of the plaintiff, in the absence of the defendant, and did not give the defendant, any opportunity to cross-examine the witness. Richards, Chief Baron, and Garrow, B. thought the award should be set aside, Gtarrow saying that the arbitrator was bound to appoint a day for the examination of the witness, otherwise the award could not have been expected, and must have been a surprise; but as the court were equally divided, the award was not set aside. In the case of Peters v. Newkirk, 6 Cowen 103, the parties agreed that a certain shearing machine should be appraised by a third person, and he made the appraisal at the request0 of the plaintiff, and in the absence of the defendant-, who was not notified. It was held that the appraisal was irregular, and not conclusive upon the defendant, it being said by the Gourt, (Woodworth, J.,) “ both parties should have had notice, so that an opportunity might be afforded to submit their remarks to the appraiser, and adduce proof if deemed necessary. The plainest dictates of natural justice, require that no man shall be condemned unheard.” We think that justice and authority, both unite in declaring that such an award as the present one, is invalid. ■

In the second place, the delay in calling upon the appraiser to act, was entirely unreasonable. It is to be noticed, that the plaintiff was the person, upon whom the duty of calling out the referee would seem properly to devolve, and not the defendant. He desired a conveyance of the land from the defendant, for which he was to pay the appraised value. He was then to do an act, for the purpose of ascertaining what sum he was to pay or tender to the defendant, in order to entitle himself to a deed, while the defendant was to remain passive. As the contract was silent upon the subject of time, the law settles that the act must be performed within a reasonable time, and what is a reasonable time, is a question of law. Morse v. Bellows, 7 N. H. Rep., 566. It must depend on the situation of the parties, and the subject matter of the contract. After so long a period as twelve years, circumstances might have entirely changed in relation to the value of the land, the condition of the appraiser, and the sit-*301nation of the parties. It does not appear, how the facts were upon these points, and we are called upon in the absence of all evidence, except the lapse of twelve years, to say whether the delay was unreasonable ; and as nothing has been offered to excuse or account for the delay, we think the award was made too late to possess any validity.

■Judgment for the defendant.