Howard, J.
This report was not drawn up, and presented for signature, until several months after the trial; and, although then signed and allowed, it was subsequently discovered, that it did not contain a full statement of the case, and of the rulings of the presiding Judge, and it must be [549]*549dismissed. But two questions were presented at the argument, upon which an expression of the opinion of the cottrt, in this stage of the proceedings, has been strongly urged. 1. Whether the award is void upon its face. 2. What would be the measure of damages, if the plaintiffs should recover in this action upon the award.
This was a submission at common law, and by its terms, the referees had power to award conclusively, upon “ the matter in dispute” between the parties; which is stated to be “ the true construction of the contract between them, for the building of the Buckfield Branch Railroad, and for several violations of the contract.” The agreement of submission recites, that, “ it is understood, that the contract shall be presented for examination, as a basis for a settlement, also all the receipts given to the company by Porter and Benson, on account of said contract, and all other legal evidence which either party can produce, in relation to this matter in dispute ; and such damage as either party has sustained by non-fulfilment of contract to be so awarded.”
The referees accepted the trust confided to them; met and heard the parties and their counsel; gave a full and deliberate construction to the contract of October 24, 1848, which was submitted to them, and awarded such damages as in their opinion, either party had sustained by non-fulfilment of that contract. Such construction, if honestly and fairly made, must stand, as the decision of the tribunal selected by the parties for that purpose, and this court can neither change nor reverse it. But it is contended, that the referees exceeded their authority, and extended their decision beyond the scope of the submission, and that the award is, therefore, void.
The articles of agreement, or contract, as it is termed, of October 24, 1848, provide, that the plaintiffs “should construct and finish in the most substantial and workmanlike manner” the railroad according to the specifications stated, for $40,000. It is specified, that “ the line of the road or gradients may be changed, if the engineer shall consider such change necessary or expedient, and no extra allowance shall [550]*550be claimed therefor.” And “ the company reserve the privilege'of substituting piling for embankment across the. inter-vale land on a. portion of sections No. 5 and 6, should a further examination of the ground render such a course advisable.” After awarding to the defendants the amount of payments t made, to the plaintiffs and $2,500, for “ non-fulfilment of the. covenants and stipulations in said contract of Oct. 24, 1848, on the part of said Porter and Benson, to be computed and....taken and charged in set-off against any claims, on the part of said Porter and Benson, against said company for damages, or otherwise,” the referees “ further report and award, that the railroad company stand chargeable to said Porter and Benson, in the following sums, to wit,” $40,000, being the price stipulated to be paid to them in the contract, and a further sum to be added to said $40,000, for the excess of work and enhanced cost occasioned by the new alignment of the road, the raising of the road bed, the increase of masonry, of excavation and embankment, of trestle work, &c., and also for the increased expense of piling across the intervale lands mentioned, over embankment, which enhanced cost of construction, after a careful examination and computation, assuming the contract of October 24, 1848, as a basis for a settlement, the undersigned have estimated at $9,500.”
Whether there was excess of work done, and whether the work was performed at enhanced cost, occasioned by such new alignment and substitution of piling for embankment, and whether the plaintiffs were entitled to increased compensation therefor, under the contract, were questions to be determined upon a true construction of the contract, by the referees, and taking that as the basis for the settlement contemplated by the agreement of submission.
So, the neglect, on the part of the company, to furnish funds, in accordance with the contract, might constitute a violation of it, and it was, therefore, competent for the referees to “ report and award on a final adjustment of all claims, as well for moneys due as damages sustained by either party for non-fulfilment of the contract of October 24, 1848, and for violations of said contract by either party.”
[551]*551It is objected, further, that the referees had no authority to award in what manner the damages should be paid. This objection would have more force if the agreement of submission had not stipulated that the contract should be presented as the basis of the settlement; or if the terms of that contract had been invaded by the adjudication. As it is, the award provides that the defendants may, or shall pay in accordance with their contract and agreement, and the objection fails. If the method of payment, thus provided, is more favorable to the defendants, than the payment in money, they may not suffer on that account; but if less favorable, and even if not authorized by the submission, such provision, as to the manner of payment, would not necessarily invalidate the whole award. It might be good in part, and bad in part ; valid for the amount awarded, and void for the provision prescribing the manner of payment, if by annulling that provision, the rights of neither party to the award are impaired. Pope v. Brett, 2 Saund. 293, note 1; Banks v. Adams, 23 Maine, 259.
In thus awarding, the referees appear to have acted within the scope of the authority conferred upon them, in giving a construction to the contract, and awarding upon its basis the damages either party had sustained by its non-fulfilment; and their award is not rendered invalid by any thing presented by these objections.
At common law, referees or arbitrators have no power to award costs, unless conferred by the agreement of submission. The award in this case, respecting costs, was not authorized, and is not binding upon the parties. But as this does not affect the substance of the award of damages, or the substantial justice of the case, it cannot impair the validity of the award in other respects. Chandler v. Fuller, Willes, 62; Fox v. Smith, 2 Wilson, 267; Addison v. Gray, 2 Wilson, 293; Gordon v. Tucker, 6 Maine, 247; Walker v. Merrill, 13 Maine, 173.
It has been held that, if no provision be made by the award [552]*552respecting costs of reference and award, they are to be paid by the parties equally. Grove v. Cox, 1 Taunt. 165.
On the subject of damages the referees “ report and award, that on a final adjustment of all claims, as well for moneys due, as damages sustained by either party, for non-fulfilment of the contract of October 24, 1848, and for violations of said contract by either party, there now remains due to said Porter and Benson from said railroad company, the sum of fourteen thousand, one hundred and twenty-five dollars and eighty-five cents, — which said sum of 014,125,85, according to the terms of ‘said contract, and upon the.
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Howard, J.
This report was not drawn up, and presented for signature, until several months after the trial; and, although then signed and allowed, it was subsequently discovered, that it did not contain a full statement of the case, and of the rulings of the presiding Judge, and it must be [549]*549dismissed. But two questions were presented at the argument, upon which an expression of the opinion of the cottrt, in this stage of the proceedings, has been strongly urged. 1. Whether the award is void upon its face. 2. What would be the measure of damages, if the plaintiffs should recover in this action upon the award.
This was a submission at common law, and by its terms, the referees had power to award conclusively, upon “ the matter in dispute” between the parties; which is stated to be “ the true construction of the contract between them, for the building of the Buckfield Branch Railroad, and for several violations of the contract.” The agreement of submission recites, that, “ it is understood, that the contract shall be presented for examination, as a basis for a settlement, also all the receipts given to the company by Porter and Benson, on account of said contract, and all other legal evidence which either party can produce, in relation to this matter in dispute ; and such damage as either party has sustained by non-fulfilment of contract to be so awarded.”
The referees accepted the trust confided to them; met and heard the parties and their counsel; gave a full and deliberate construction to the contract of October 24, 1848, which was submitted to them, and awarded such damages as in their opinion, either party had sustained by non-fulfilment of that contract. Such construction, if honestly and fairly made, must stand, as the decision of the tribunal selected by the parties for that purpose, and this court can neither change nor reverse it. But it is contended, that the referees exceeded their authority, and extended their decision beyond the scope of the submission, and that the award is, therefore, void.
The articles of agreement, or contract, as it is termed, of October 24, 1848, provide, that the plaintiffs “should construct and finish in the most substantial and workmanlike manner” the railroad according to the specifications stated, for $40,000. It is specified, that “ the line of the road or gradients may be changed, if the engineer shall consider such change necessary or expedient, and no extra allowance shall [550]*550be claimed therefor.” And “ the company reserve the privilege'of substituting piling for embankment across the. inter-vale land on a. portion of sections No. 5 and 6, should a further examination of the ground render such a course advisable.” After awarding to the defendants the amount of payments t made, to the plaintiffs and $2,500, for “ non-fulfilment of the. covenants and stipulations in said contract of Oct. 24, 1848, on the part of said Porter and Benson, to be computed and....taken and charged in set-off against any claims, on the part of said Porter and Benson, against said company for damages, or otherwise,” the referees “ further report and award, that the railroad company stand chargeable to said Porter and Benson, in the following sums, to wit,” $40,000, being the price stipulated to be paid to them in the contract, and a further sum to be added to said $40,000, for the excess of work and enhanced cost occasioned by the new alignment of the road, the raising of the road bed, the increase of masonry, of excavation and embankment, of trestle work, &c., and also for the increased expense of piling across the intervale lands mentioned, over embankment, which enhanced cost of construction, after a careful examination and computation, assuming the contract of October 24, 1848, as a basis for a settlement, the undersigned have estimated at $9,500.”
Whether there was excess of work done, and whether the work was performed at enhanced cost, occasioned by such new alignment and substitution of piling for embankment, and whether the plaintiffs were entitled to increased compensation therefor, under the contract, were questions to be determined upon a true construction of the contract, by the referees, and taking that as the basis for the settlement contemplated by the agreement of submission.
So, the neglect, on the part of the company, to furnish funds, in accordance with the contract, might constitute a violation of it, and it was, therefore, competent for the referees to “ report and award on a final adjustment of all claims, as well for moneys due as damages sustained by either party for non-fulfilment of the contract of October 24, 1848, and for violations of said contract by either party.”
[551]*551It is objected, further, that the referees had no authority to award in what manner the damages should be paid. This objection would have more force if the agreement of submission had not stipulated that the contract should be presented as the basis of the settlement; or if the terms of that contract had been invaded by the adjudication. As it is, the award provides that the defendants may, or shall pay in accordance with their contract and agreement, and the objection fails. If the method of payment, thus provided, is more favorable to the defendants, than the payment in money, they may not suffer on that account; but if less favorable, and even if not authorized by the submission, such provision, as to the manner of payment, would not necessarily invalidate the whole award. It might be good in part, and bad in part ; valid for the amount awarded, and void for the provision prescribing the manner of payment, if by annulling that provision, the rights of neither party to the award are impaired. Pope v. Brett, 2 Saund. 293, note 1; Banks v. Adams, 23 Maine, 259.
In thus awarding, the referees appear to have acted within the scope of the authority conferred upon them, in giving a construction to the contract, and awarding upon its basis the damages either party had sustained by its non-fulfilment; and their award is not rendered invalid by any thing presented by these objections.
At common law, referees or arbitrators have no power to award costs, unless conferred by the agreement of submission. The award in this case, respecting costs, was not authorized, and is not binding upon the parties. But as this does not affect the substance of the award of damages, or the substantial justice of the case, it cannot impair the validity of the award in other respects. Chandler v. Fuller, Willes, 62; Fox v. Smith, 2 Wilson, 267; Addison v. Gray, 2 Wilson, 293; Gordon v. Tucker, 6 Maine, 247; Walker v. Merrill, 13 Maine, 173.
It has been held that, if no provision be made by the award [552]*552respecting costs of reference and award, they are to be paid by the parties equally. Grove v. Cox, 1 Taunt. 165.
On the subject of damages the referees “ report and award, that on a final adjustment of all claims, as well for moneys due, as damages sustained by either party, for non-fulfilment of the contract of October 24, 1848, and for violations of said contract by either party, there now remains due to said Porter and Benson from said railroad company, the sum of fourteen thousand, one hundred and twenty-five dollars and eighty-five cents, — which said sum of 014,125,85, according to the terms of ‘said contract, and upon the. basis of the same, is payable in manner following : — that is to say, seven thous- and, thee hundred dollars in the capital stock of the company, at par, of one hundred dollars a share; — said seven thousand, thee hundred dollars, part of the aforesaid 014,125,85, is to be retained and applied by said pompany to the payment in full of all assessments made, and to be made, to the amount of one hundred dollars per share, of said capital stock. And the undersigned award that said railroad company forthwith issue to said Porter and Benson certificates of seventy-thee shares in the capital stock of said company, the whole amount of one hundred dollars on each share being paid in the manner above mentioned. Such certificates to be delivered at the office of said company on demand. And the undersigned further report and award that the said railroad company pay to said Porter and Benson on demand, after being notified of this award, the sum of six thousand, eight hundred and twenty-five dollars, and eighty-five cents, being the balance of 014,125,85, after deducting the aforesaid sum of 07,300, which said sum when paid, the undersigned award, is to be received by said Porter and Benson, in full satisfaction of all claims and demands whatsoever, against said company, growing in any manner out of said agreement of October 24, 1848, and of all claims and demands for material or supplies furnished, or work done, by pr on behalf or said' Porter and Benson, in the construction of the Buckfield Branch Railroad.”
[553]*553This is not an award that the defendants should pay to the plaintiffs $14,125,85, as claimed by them, but that they should pay that sum, less $7,300, and issue to the plaintiffs, seventy-thee shares of the stock of the company, exempt from assessments, in accordance with the contract of the parties. The sum of $7,300 being nominally retained as an equivalent for such assessments, though in fact never due to the plaintiffs upon the contract, or by the award.
The measure of damages, then, will be $6,825,85, and the value of the seventy-thee shares of the stock, thus circumstanced, with interest from the date of the demand proved. Any other rule would east upon the defendants a burden not imposed by the award, and wholly inconsistent with the terms and spirit of the contract, upon which the award was to be based, and upon which it was in fact made. But, for the reasons given, the report must be dismissed, and the cause may be submitted to a jury.