Keyes v. Fulton

42 Vt. 159

• Court: Supreme Court of Vermont
• Decided: February 15, 1869
• Status: Published

Opinion

The opinion of the court was delivered by

Peck, J.

The issue in this case was whether the plaintiff revoked the submission before the award, on which the defendant relied as a defense, was published. The question presented by the exceptions is, whether the letter written by the plaintiff’s attorney, Mr. Davis, to the arbitrator after the hearing, was, under the circumstances, a revocation of the powers of the arbitrator. The plaintiff’s evidence tended to show an agreement between the counsel of the respective parties at the close of the hearing before the arbitrator, that they were thereafter to furnish their briefs to the arbitrator, first each furnishing the other a copy of his brief, so as to enable each to reply to the brief of the other. The case states that this agreement was denied on the part of the defense, but we learn, however, from the counsel that it was only that part of the agreement relating to furnishing copies to each other that was in dispute at the trial. Had it been the intention that the arbitrator should treat the letter as a revocation, it is hardly probable the writer would have forwarded his brief at the same time with the letter, for the use of the arbitrator. The reason assigned in the letter by the plaintiff’s counsel, for the postponement of the decision, was, that not having seen the brief of the defendant’s counsel, he could not tell whether he had anticipated all the points made on the part of the defense. The arbitrator having both briefs before him, could judge of the grounds urged for postponing the decision. Very likely he saw that the plaintiff’s counsel had anticipated and replied to all the points made on the other side, and concluded that the reason suggested for delaying the decision had no foundation in fact. We think the arbitrator was not bound to regard the letter as a revocation. Had the writer intended it to be so understood, he would have used language more explicit to that effect; especially as he is of the legal profession and supposed to know what was necessary to constitute a revocation. As the powers of the arbitrator were not revoked, whether he acted judiciously or not in proceeding to decide the case at the time he did, cannot affect the validity of the award any more’than an error of judgment on any other question in the case. The letter is not a revocation, but a request for delay.

The request of the plaintiff’s counsel to the court to. charge the jury that if they should find there was an agreement by counse for the exchange of briefs, then the letter was a revocation, was. properly refused. If there was such agreement between counsel, a breach of it would not amount to a .revocation,- nor would it give that effect to the letter. If the plaintiff, or his counsel, deemed it indispensable that they should have a copy of the brief on the part of the defense before a-decision-of the case, they should have revoked the submission, instead of trusting it to the judgment and discretion of the arbitrator to decide whether he would grant the delay on the suggestion contained in the letter, or decide the case at once, knowing as they did that the defendant’s counsel had sent his brief to the arbitrator without giving them a copy.

The judgment of the county court is affirmed.