(December Term, 1860.)
1. Where an arbitrator disposes of matter which was referred to him and also of matter not referred and the two are in their nature separable, it is the duty of the court to give judgment for that which is within the terms of the submission and reject that which is without.
2. An arbitrator has no right to award himself a fee for his services, unless the power to do so is expressly contained in the submission.
APPEAL from Saunders, J., at Spring Term, 1860, of JOHNSTON. (83)
Miller and A. M. Lewis for plaintiff.
Moore for defendant.
After pending for several terms, the following rule of court was entered in the cause, to wit: "All matters in dispute referred to E. G. Haywood." The arbitrator reports his proceedings and the evidence laid before him, and thereupon awards as follows: The arbitrator, therefore, awards to the plaintiff $93.83, with interest on $62.50 from the first day of this term until paid. He further awards that the defendant shall pay the costs of this suit, and also the costs of the reference, including $25 to be paid to the arbitrator for four days or parts of days engaged in this arbitration, and that the clerk of the Superior Court of Johnston County do tax the costs accordingly, and do issue execution for the said costs and for the sum aforesaid." The defendant excepted to this award.
1. Because the arbitrator has not allowed him opportunity to procure witnesses.
2. Because he has not allowed the defendant's account as a set-off.
3. Because he has not allowed credits, stated and admitted by the plaintiff.
The cause was argued on the exceptions to the award, and his Honor gave judgment as follows: "In this case the award is confirmed. Judgment according to the award for $93.83, of which sum $62.50 is principal and carries interest from 22 March, 1858." From which the defendant appealed.
This cause, by a rule of the court below, was referred to an arbitrator, whose award was to be a judgment of the court. An award was, in due time, reported to the court in favor of the plaintiff for $93.83, principal and interest, and for his costs to be taxed, including a fee to the arbitrator. Three exceptions were taken by the defendant to the award in the court below, viz.:
First. Because the arbitrator had not allowed the defendant (84) opportunity to procure witnesses.
Second. Had not allowed defendant's account as a set-off.
Third. Had not allowed credits stated and admitted by the plaintiff.
A judgment was given, according to award, for $93.83, without noticing the award in respect to costs or making any special disposition of them. In this Court it is moved, in addition to the grounds below, to set aside the award for defects appearing upon its face, our attention being particularly called in this connection to the award of the fee to the arbitrator.
We have considered these various grounds of objection to the award and approve the judgment of the court thereon. The compensation to himself did not lie within the terms of the matter submitted, and, consequently, was not within the scope of the arbitrator's powers. But for that reason the arbitrament is not void in toto. It may be bad in part and good in part. And where an arbitrator disposes of the matter which was referred, and also of other matters not referred, and the two are in their nature separable, it is the duty of the court to distinguish them, to give judgment for that which is within the terms, and reject that which is without. Cowan v. McNeely, 32 N.C. 5. It will be perceived by reference to the judgment of the court that it does not embrace the compensation in question or, indeed, any costs at all. It is a judgment simply for $93.83, awarded to plaintiff, which is precisely the judgment which ought to have been given, with the addition of the costs, that were taxable by law, against the defendant.
We did not understand the matters of exception in the court below to be pressed in this Court. They are clearly matters which might have been addressed in proper time to the arbitrator's discretion, but form no ground for the court's interference. It is not alleged that any fraud or imposition was practiced upon the arbitrator or that he was corrupt or partial, which might form a ground of exception to an award made under a rule of court; but the allegation is merely of certain matters in which the arbitrator mistook facts or law, or else exercised his discretion to the prejudice of the defendant. This does not (85) constitute ground for setting aside an award. Eaton v. Eaton, 43 N.C. 102.
Upon the whole, the judgment below does the defendant no legal wrong. It was based upon a part of the award clearly valid, and the only defect in it is the omission to embrace the costs awarded, which were within the powers of the arbitrator, i. e., the taxable costs, which may now be done, the fee to arbitrator excluded.
PER CURIAM. Affirmed.
Cited: Stevens v. Brown, 82 N.C. 463; Knight v. Holden, 104 N.C. 111; Kelly v. R. R., 110 N.C. 432.