ELIZABETH L. W. BAILEY, Admrx., etc., v.

DISTRICT OF COLUMBIA.

(See S. C. Reporter's ed. 161-170.)

Agreement to arbitrate — power of commis¬ sioners of District of Columbia — appoint¬ ment of referee.

An agreement to arbitrate, not under rule of court or within the terms of a statute en¬ acted for such purpose, is a contract.

bia had not the power to bind the District by a common-law submission of a pending suit for breach of contract, to a referee, under the act of June 11, 1878, which provides that they

shall make no contract and incur no obliga¬ tion which is not therein provided for and ap¬ proved by Congress.

a referee, on the minutes of the commission¬ ers of the District of Columbia, without any signature thereto by the commissioners, is in¬ sufficient to constitute a contract by them un¬ der the act of Congress of June li, 1S78, re¬ quiring all contracts to be copied in a book kept for that purpose, and to be signed by the commissioners.

[Nos. 390, 420.]

Submitted January 10, 1808. Derided May 31, 1808.

IN ERROR to the Court of Appeals of the District of Columbia to review a judgment of that court ailirming a judgment in favor ->1 the plaintill, Elizabeth W. Bailey, as ad¬ ministratrix of Davis W. Bailey, deceased,

Note, — As to contracts ; their interpretation and validit y, — see note to Bell v. Bruen, 11 : 89.

/is to agreements to arbitrate; specific perfor¬ mance of; remedy at law for breach of; as a bar to actions, — see note to Kinney v. Baltimore & O. Employees’ Asso. (W. Va.) 15 L. R. A. 142.

As to submission to arbitration ; effect of; revocation of; judgment on award, — see note to People, Union Ins. Co., v. Nash (N. Y.) 2 L. R. A. 180.

As to setting aside arbritration and award; relief from mistake in award; validity of award, — see note to Hartford F. Ins. Co. v. Bonner Mercantile Co. (C. C. D. Mont.) 11 L. R. A.

Arbritration ; submission to; when may be re¬ voked; when reviewed, or set aside, or void; when binding ; effect of; death of arbitrator; notice cf hearing; selecting umpire; costs. When submission to arbitration is revocable. Paulsen v. Mauske, 126 Ill. 72; Oregon & W. Sav. Bank v. American Mortg Co. 3a“Fed. Itep. 22; People, Union Ins. Co., v. Nash, 111 N. Y. 310, 2 L. It. A. 180; Gregory v. Boston Safe De¬ posit & T. Co. 36 Fed. Itep. 4U8; Sidliuger v. Kerkow, 82 Cal. 42; Farel v. Roberts, 1 Pa. Dist. II. 743; Minneapolis & St. L. It. Co. v Cooper, 59 Minn. 290 .

A party to an arbitration agreement provid ing for a written award mav revoke the same after the arbitrators have individually commun¬ icated to strangers their respective views but before they have signed auy award. Butler v Greene, 49 Neb. 2S0.

The right to revoke a submission to arbitra¬ tion at common law must be exercised before tile publication of the award. Otherwise it wilt be considered waived. Connecticut F. Ins Co v. O’Fallon, 49 Neb. 740.

An agreement to submit a matter to two arbitrators, by whom au umpire is to be chos en to act only on matters of difference between the arbitrators, does not authorize one arbitra¬ tor and such umpire to return an award with¬ out g showing of difference between the arbi¬ trators. Manufacrurers’ & B. F Ins Co v Mullen, 48 Neb. 620. ' '

An award of arbitrators is too uncertain to lie conclusive upon the parties where it leaves the amount due from one party to the other to bo determined by a reference to books of ac¬ count involving more than a mere computation Mather v. Day, 106 Mich. 371.

The method provided by Neb. Code Civ Proc tit. 28, for settling differences by arbitration! is not exclusive of the right to arbitrate which existed at common law. Burkland v. Johusou 50 Neb. 858.

Effect upon common-law arbitration of stat¬ utory provisions for arbitration. New York Lumber & Wood Working Co. v. Schnieder, 119

118

N. Y. 475 ; Ehrman v. Stanfield, *80 Ala. 118 ; Conger v. Dean, 3 Iowa, 463, 66 Am. Dec. 93.

Agreement of parties to submit controversy to arbitrators, who were to return their award to a specified court, is binding as to the court to which the award shall be returned, even to the extent of vesting such court with jurisdic¬ tion over the parties which it otherwise would not have had. McMillan v. Allen, 98 Ga. 405.

Agreement to submit to arbitrators all dis¬ putes relating to performance of agreement, whose decision, not only as to the damages, but also as to the fact of a violation of the agree¬ ment shall be final, is void. Miles v. Schmidt, 168 Mass. 339.

Arbitrators are not required to decide any matter before them according to law. Henrv v Hilliard, 120 N. C. 479. J *

viiuucutt ui vacancy oy aeatn or other¬ wise, in a board of arbitration, revokes the sub¬ mission, where it makes no provision for tilling vacancies. Wolf v. Augustine, 181 Pa. 576.

ihe hearing of testimony by arbitrators in the absence and without notice to a party is tatal to an award against such party. Itand v. Peei, 74 Miss. 305.

Necessity of notice of hearing. The War¬ wick. L. R. 15 Prob. Div. ISO ; Vessel Owners’ lowing Co. v. Taylor, 126 Ill. 250 ; Citizens Ins Co. v. Hamilton, 4S Ill. App. 593; Dormov v. Knower, 55 Iowa, 722 ; Curtis v. Sacramento, V^Cal. 102 : McFarland v. Mathis, 10 Ark. 500 • Hills v. Home Ins. Co. 129 Mass. 345 : Conrad v. Massasoit Ins. Co. 4 Allen. 20: Wood v Holme. 14 It. I. 325 ; Dreyfous v. Hart, 36 La" Ann. 929 ; Conger v. Dean, 3 Iowa, 463. 66 Am Dec. 93; Lutz v. Linthicura, 8 Pet 178 (8 : 992 1 ’ Emery v. O wings. 7 Gill, 4S8. 4S Am. Dec. 5S0 ; Warren v. Tinsley, 2 U. S. Ann 507 53 Fed. Rep. 089, 3 C. O. A 613.

Award is null and void where arbitrators ap¬ pointed by the parties, without the consent of oue of the parties, called in a third arbitrator before they had failed to agree, in violation of the submission which stipulated that a third aibitrator might be called in if the original ar- tona69 Vta01d t0 asl'ee’ Christenson v. Carle-

Power to select umpire. Hart v. Kennedy, 4|0N- 'T- F.q. 51; Bryan v. Jeffreys, 104 N. C. .M2 : McMahan v. Spinning, 51 Ind. 1S7 ; Royse v. McCall, 5 Bush, 695 ; Sharp v. Lipsey, 2 Bail L. 113; Daniel v. Daniel. 6 Dana, 98.

Award of arbitrators appointed in action will not be set aside because the board of arbitra¬ tors did not commence work, nor finish the work and file the award, within the time provided in tlie agreement of submission, where tire delay was only a few days and could not affect the rights of the parties. Eifert v. Wolf, 19 Ky. L Rep. 507.

An award will not be set aside on the ground of error in the findings in the absence of fraud, undue influence, or improper conduct on the part of the arbitrators. Henry v. Hilliard, 120 IN. C. 4 1 9.

171 U. S.

District of Columbia v. Bailey.

lbl, 103

against the District of Columbia, in the Su¬ preme Court ol that District upon an award for a breach of contract for resurfacing with asphaltum certain streets in the citv of Washington, and in favor of the defendant in another action. Reversed, and cases remand¬ ed with directions to dismiss one action and to grant a new trial in the other.

See same case below, 9 App. D. C. 360.

Statement by Mr. Justice White*

On July 30, 1879, a contract for resurfac¬ ing with asphaltum certain streets in the city £162]of Washington was awarded to the ‘Bailey- trench Paving Company. The agreement was embodied in a writing signed on the one part by Davis W. Bailey as general agent of the company just named, and on the other part signed and sealed by the commissioners of the District of Columbia. The price speci¬ fied for the work aggregated a little less than $41,000. On February 12, 1880, when about

three fourths of the work to be done under this contract had been completed and about $36,000 earned thei'efor, including $5,784.14 allowed for extra work, the commissioners notified Bailey that no more work could be performed under the contract, because of the fact that the appropriation made by Con¬ gress for the work in question was exhausted. Subsequently; on February 24, 1883, Davis W. Bailey, claiming that he was in fact the Bailey-French Paving Company, instituted an action at law in the suprerhe court of the District of Columbia against the District of Columbia to recover $25,000 as damages, averred to have been sustained by the cessa¬ tion of the work under the contract. The District, oh April 4, 1883, filed pleas, claim¬ ing a set-off of $1,312.30 for damages alleged to have been sustained by improper perform¬ ance of the work of resurfacing; averring the termination of the contract by reason of the appropriation having been exhausted;

Arbitrators, unless restricted by the agree¬ ment to submit, are not, as to matters of law, bound in all cases to follow the strict rules of law governing the courts, but may decide in accordance with their views of the equitable rights of the parties. School Dist. No. 5 v. Sage, 13 Wash. 352.

An award by arbitrators under the Washing¬ ton statutes, if fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the par¬ ties. School Dist. No. 5 v. Sage, 13 Wash. 352.

The conclusions of arbitrators on facts sub¬ mitted to Them, which are such as may be de¬ termined differently by fair minded and honest people, are final, and not subject to review. Witz v. Tregallas, 82 Md. 351.

A suit cannot be maintained upon an original cause of action which has been submitted to arbitrators, where the plaintiff retains the fruits of the award. Orvis v. Wells, F. & Co. 38 U. S. App. 471, 73 Fed. Pep. 110, 19 C. C. A. 382.

An award by arbitrators will not be set aside upon a doubtful point of law or upon a com¬ plaint of error which is not plain, even where the arbitrators are required to decide according to the strict rules of law. School Dist. No. 5 v. Sage, 13 Wash. 352.

' ^agreement of arbitration forced by a threat of prosecution for perjury is void. La- ferriere v. Cadieux, 11 Manitoba L. R. 175.

Failure to insert the names of the arbitrators in a written submission to arbitrate does not invalidate such submission. Reeves v. McGloch- lin, 65 Mo. App. 537.

An award made in pursuance of a submission under Ala. Code, § 3222, of partnership trans actions carried on in two states by partners who reside in two different states, is not vi¬ tiated as an Alabama award by the fact that the sitting of the arbitrators occurred in a store, the property of the parties across the state line. Fdmu'ndson v. Wilson, 108 Ala. 118.

A submission to arbitration requiring the ar¬ bitrators to make a written award and deliver a copy thereof to the parties is not complied with by one of the arbitrators notifying a party on meeting him on the street that the arbitra¬ tors had come to a decision, with a statement as to what their finding was. Anderson v. Miller, 108 Ala. 171.

The decisions of arbitrators, under Ala. Code, i 3222. are to be liberally construed, and every reasonable intendment is made to support them. Edmundson v. Wilson, 108 Ala. 118.

A motion to vacate or modify an award is properl v denied when filed during the second term after publication of the award, under the Missouri statute requiring such an application to be made at the next term after such publi¬ cation. Reeves v. McGlochlin, 65 Mo. App. 537.

An award of arbitrators will not be vacated or modified under Mo. Rev. Stat. 1889, §§ 405, 406, for alleged mistakes which do not appear

171 TJ. S.

on the face of the record. Reeves v. McGloch¬ lin, 65 Mo. App. 537.

That an agreement for arbitration does not comply with the mode prescribed by the Texas Revised Statutes does not invalidate it, in view of the provision that nothing therein shall be construed as affecting the right of parties to arbitrate their differences in such other mode as they may select. Salinas v. Stillman, 30 U. S. App. 40, 66 Fed. Rep. 677, 14 C. C. A. 50.

An agreement without action pending, to submit all matters in variance between the parties to designated arbitrators, written down by a justice in his docket, is a common-law sub¬ mission to arbitration. Climenson v. Climen- son, 163 Pa. 451.

Costs and expenses incurred in preparing for an arbitration, under an agreement that the compensation of the arbitrators and their ex¬ penses and those of the witnesses shall be borne and paid by the parties in a designated propor¬ tion, may be recovered in full from a party who revokes the agreement, under N. Y. Code Civ. Proc. § 2384. Union Ins. Co. v. Central Trust Co. 24 N. Y. Civ. Proc. Rep. 219, Affirmed in 87 Ilun, 140.

A provision in a submission of a controversy to arbitrators, that the arbitrators shall proceed on the principles of equity, it being the desire that the matters in dispute shall be equitably settled so that each shall have from the other ail that is his equitable due, — means equity in the sense of "fair dealing” and ‘'justice.” Re Curtis, 64 Conn. 501.

An agreement by a client and his attorney to submit the amount of the latter’s compensation to the determination of a person upon a sworn itemized and explanatory statement of the serv¬ ices rendered and expenses incurred and of the moneys received, the arbitrator to allow only such sum as he believes proper and necessary for preparing the defense in the suit in which such services were rendered, constitut .s in ef¬ fect a common-law arbitration, which is still recognized and enforced by the courts of New York. Box v. Costello, 6 Misc. 415.

The award of arbitrators to whom a case is submitted by mutual consent of the parties is conclusive upon them, although the agreement of submission is by parol and the parties do not assent to the award after it is made. Wentz v. Bealor, 14 Pa. Co. Ct. 337.

The power of awarding the costs of arbitra¬ tion is necessarily incident to the authority con¬ ferred on the arbitrators of determining the case, although such costs are not provided for in the terms of submission. Stewart v. Grier,

7 Houst. (Del.) 378.

The fact that one has been previously In the employ of one of the parties to an arbitration does not disqualify him from acting as clerk for the arbitrators. Wilson v. Wilson, 18 Colo.

The necessity for filing an award of arbitra¬ tors with the clerk as required by the Colorado

119

162-164

Supreme Court op the United States.

Oct. Term,

and alleging that the time within which the contractor had stipulated to complete the work had expired long prior to the cancela¬ tion of the contract. The plaintiff joined is¬ sue and filed a replication on April 18, 1883.

On June 19, 1883, Bailey died. His widow was appointed administratrix, and the action against the District was revived in her name.

On September 16, 1891, the attorney for the claimant addressed a letter, on behalf of the administratrix, to the commissioners of the District of Columbia, calling attention to the pending case, stating that “the ground of said suit is for breach of contract,” recit¬ ing the facts as to the making of the contract and the mode by which it was terminated, and claiming that, at the time of such can¬ celation, Bailey had expended for machinery necessary to the performance of the contract $10,180; that he had at the time stock on [ 1 63 ]hand, $7,000 ; that *the profit on the unexecut¬ ed balance of the work would have been $8,- 000; that there was due under the contract for an extra one half inch of surfacing $5,000. These items were stated in the letter to amount to $31,180, but only aggregate $30,-

commissioners to the fact that the item of $5,000 for an extra half inch of resurfacing was not asserted in the declaration in the pending suit, the attorney for the administratrix pro¬ ceeded to refer to the defenses interposed in such suit on behalf of the District, and next stated the claim made by the contractor in his replication, that the delay in the work was the fault of the District. The conclu¬ sion of the letter, omitting references to im¬ material matters, was as follows:

“Now, having stated the principal facts which bear upon this case, that you may have sufficient knowledge to act in the prem¬ ises, I write to ask if you will appoint some good man as a referee or arbitrator to whom

this case may be referred, with power to hear the evidence and make an award which shall’ be accepted, whether for or against us, as a final settlement of this long and much liti¬ gated case.”

This communication was referred by the commissioners to the attorney for the Dis¬ trict, who indorsed thereon under date of Oc¬ tober 17, 1891:

“This is a case which has been pending in the court for a long time and it ought to be disposed of. If it could be referred to some first-class referee, who will give us a full hear¬ ing, it would be a very good way of disposing of it, and I should favor such a reference, as we can then attend to it at our convenience.”

A memorandum was also sent by one of the commissioners to the assistant attorney for the District, which read as follows:

“Thomas: Think of some good names for a referee, and talk with us about this ease.

“October 27, 1891. J. W. D.”

A memorandum in pencil, evidently having reference to the foregoing, is as follows:

*“Ans. Mr. Douglass. Comm’rs think this[164J case should be settled in court.”

On October 28, 1891, Assistant Attorney Thomas sent the following letter:

To the Hon. Commissioners, etc., etc.

Gentlemen: I return to you herewith a communication from W. Preston \ illiamson, Esq., relative to the case of Bailey v. The District of Columbia, referred to me with the request that I give you the name of someone who would make a good referee.

I would suggest either Mr. A. B. Duvall or Mr. J. H. Lichliter, both members of the bar and well qualified to decide the issues in that case. Very respectfully,

S. T. Thomas, Ass’t Att’y, D. C,

statute is obviated by the payment of the award. Wilson v. Wilson, IS Colo. 615.

Failure of an umpire chosen to render a de¬ cision upon an arbitration after the authority of the original arbitrators has ceased, to rehear the testimony taken before the arbitrators, is fatal to the award. Re Greniug, 74 Iiun, 62.

Omission to administer oaths to arbitrators and witnesses is not a ground of objection to the award made by the arbitrators where the contending parties expressly agreed that no oaths should be administered to the arbitrators, and that the testimony of witnesses unsworn should be received. Russell v. Seery, 52 Kan.

Failure of an arbitrator to be sworn is not a jurisdictional defect, but at most an irregulari¬ ty which can be availed of only by motion to set aside the award, or by raising it in the an¬ swer in a suit to enforce the award. Box v. Costello, 6 Misc. 415. . , . .

A waiver by an assignor of a claim which, by agreement of the assignor, assignee, and debtor, is submitted to arbitration, of the oath of arbi¬ trators required by N. Y. Code Civ. Proc. § 2369, unless waived, is not binding upon his assignee. Re Grening, 74 Huti. 62.

An award of arbitrators is void where they have attempted to award what they have no power to award, and have failed to find what they were empowered to determine. Fortune v. Kiliebrew, 86 Tex. 172.

Error of judgment by arbitrators as to the effect or weight of evidence is not a ground for setting aside the award. Russell v. Seery, 52 Kan. 736.

An award of arbitrators will not be set aside

for fraud, accident, or mistake unless the fraud was practised upon the arbitrators or the acci¬ dent or mistake deceived and misled them. A mistake of arbitrators in weighing the facts placed before them, or their adoption of errone¬ ous rules of law, is not sufficient. Wilson v. Wilson, 18 Colo. 615.

An award of arbitrators, arrived at in pur¬ suance of the terms of the agreement voluntari¬ ly adopted by the parties, will not be reviewed on the question of damages, unless there was corruption or partiality of the arbitrators, mis¬ conduct during the hearing, or fraud in the op¬ posite party. Hartford F. Ins. Co. v. Bonner Mercantile Co. 15 U. S. App. 134, 56 Fed. Rep. 378, 5 C. C. A. 524.

An award under a common-law arbitration is conclusive upon the parties, merges the original right, and alone furnishes the basis upon which the rights of the parties are to be determined. Box v. Costello. 6 Misc 415.

A judgment entered upon an award by arbitra¬ tors is void where some of the necessary par¬ ties did not properly join in the submission, and the arbitrators failed to determine the issues and decided matters not submitted to their de¬ termination. Fortune v. Kiliebrew, 86 Tex.

172. „ „ u.

An application to set aside an award of arbi¬ trators for purely technical reasons will be de¬ nied where no apparent injustice has been done or is contemplated, and defendant voluntarily submitted all matters in dispute, and the amount of the award has been collected. Woel- fel v. Hammer, 159 Pa. 448.

120

171 U. &,

1897

District of Columbia v. Bau-k^.

104-16?

The next document referring to tlie matter is the following:

Office of the

Commissioners of the District of Columbia.

Washington, January 11, 1892.

Ordered, that J. J. Johnson is hereby ap¬ pointed referee in the matter of the suit of Bailey, Administratrix of Bailey, Deceased, v. District of Columbia.

Official copy furnished Mr. J. J. Johnson.

By order: W. Tindall, Secretary.

Under this appointment, on February 17. 1892, the attorneys for the respective parties appeared before Mr. Johnson. It was claimed by witnesses for the plaintiff at the trial of the action subsequently brought to enforce the finding of the referee, that at the com¬ mencement of the hearing the latter gentle¬ man, as well as the attorney for the adminis¬ tratrix, raised the question whether or not under the order of appointment the decision of the referee was to be final, and were as¬ sured by the attorney for the District that the decision of Air. Johnson was to be a final [ 1 65]determination of the case. *Such witnesses also testified that subsequently, when a ques¬ tion arose with respect to permitting an amended declaration to be filed, setting up a claim for an extra half inch of resurfacing, the referee and attorneys discussed as to whether the decision of the referee “was to wind up finally the whole matter,” and an affirmative conclusion was arrived at. No attempt, however, was made to obtain from the commissioners of the District any modification or amplification of the writing of January 11, 1892.

The hearing before the referee was con¬ cluded on July 18, 1892, when Air. Johnson placed on the files of the supreme court of the District of Columbia in action numbered 24,279 his report as referee. The report did not refer to the mode by which its author had become referee. It was entitled in the cause, purported to contain a synopsis of the pleadings, the plaintiff’s claim, a statement of the facts and the findings of “J. J. John¬ son, referee.” The report concluded as fol¬ lows:

“Upon the evidence and the law I have al¬ lowed the plaintiff for the unexecuted bal¬ ance of 11,385 square yards, $4,440.15, being the profit between the cost of resurfacing the streets at fifty cents per square yard and eighty-nine cents, the price received, and for the extra one-half inch I have allowed the plaintiff $6,079.05 at the contract price, ag¬ gregating the sum of $10,519.20. I do there¬ fore find that there is due to the plaintiff from the defendant the sum of $10,519.20, be¬ sides costs.”

The referee also fixed his fee at $550, which was paid by the administratrix.

On September 23, 1892, exceptions were filed on behalf of the District to this report. Upon the exceptions, the attorney for the plaintiff made the following indorsement:

“I consent that these exceptions be filed

171 U. S.

nunc pro tunc.” On March 10, 1893, a mo¬ tion for judgment was filed on behalf of the plaintiff.

Without action being had on the excep¬ tions and motions referred to, the adminis¬ tratrix of Bailey, on August 8, 1893, insti¬ tuted an action at law, numbered 34,564. in the supreme court *of the District of 0olum-

bia, seeking to recover from the District the sum of $10,519.20, basing the right to such recovery upon the claim that the finding of Mr. Johnson was, in fact, a final decision and award. In the affidavit filed with the dec¬ laration, as authorized by the rules of prac¬ tice of the court, what purports to be a copy of the resolution appointing Air. Johnson referee is set out, but the words “of the suit” are omitted from before the words “of Bailey, administratrix.” On September 2, 1893,

pleas were filed on behalf of the District, de¬ nying that it had agreed to submit the mat¬ ters of difference referred to in the declara¬ tion to the award and arbitrament of John¬ son, and averring that Johnson had not made an award concerning the same. The various steps in the original action (No. 24,279) were stated, and it was alleged that motions to set aside award and for judgment were still pending. It was also averred that the alleged award was not under seal and was never delivered to the defendant; that the defendant never undertook and promised in the manner and form as alleged, and that the District was not indebted as alleged. The plaintiff joined issue. On October 8, 1S95, on motion of the plaintiff, the two causes were consolidated. While the motion to consolidate was opposed by the District, no exceptions were taken to the entry of the or¬ der of consolidation.

The consolidated action came on for trial January 13, 1893. At the trial W. l’reston Williamson, a witness for the plaintiff, tes¬ tified that he had sent to the commission¬ ers the communication of September 16,

was permitted to testify to conversations had separately with two of the commission¬ ers, which tended to show that in the event of the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee or arbitrator the fina1 determination of the entire controversy referred to in William¬ son’s letter. Also under objection and ex¬ ception, the witness testified that after the order appointing Mr. Johnson referee was made by the commissioners, he and the attor¬ ney for the District, in the presence of the referee, discussed the scope of the submission,

*and agreed that the decision of the referee

was intended by the parties to the contro¬ versy to be a final disposition of the whole matter. The indorsements on the letter of Air. Williamson, the letter of the assistant attorney of the District, and other memo¬ randa heretofore set out were put in evidence on behalf of the plaintiff. Mr. Hazleton, a former attorney for the District, also testi¬ fied for the plaintiff, in substance, under ob¬ jection and exception, that it was the inten-

121

167-1(3!)

Supreme Court op the United States.

( )cr. Term,

tion of the commissicners, as he knew from oral statements made to him by two of the commissioners, that the appointment of a referee would be for the purpose of ending the whole controversy, and that nothing oc¬ curred between the time of the appointment of the referee and the making of the report to change that understanding. He also tes¬ tified as to the filing of the amended declara¬ tion before the referee, setting up the claim for an extra half inch of resurfacing, which was not embraced in the pending suit at the time the referee or arbitrator was appointed.

J. J. Johnson also testified on behalf of the plaintiff, under objection and exception, as to the understanding had with him at the hearing before him as referee, by the counsel for the respective parties, regarding the finality of any decision made by him, and as to the filing of the amended declaration for ' the extra half inch ox resurfacing. He tes¬ tified that he filed the report made by him in court of his own motion, and averred that certain written matter filed with his report was not a part of the report, and that it did not contain all the evidence, though it con¬ tained all the oral testimony given before him.

The report was next put in evidence, ob¬ jections being first separately interposed to its introduction on the grounds: 1, that the papei’s and evidence attached thereto should also be put in evidence: and, 2, that the referee was without authority to make an award. To the ovenuling of each objection the defendant duly excepted.

John W. Douglass, one of the commission¬ ers for the district in office at the time of the appointment of the referee, testified on be¬ half of the plaintiff that the intention of the 168]* commissioners was to make the reference final. The evidence for the plaintiff was closed with the testimony of the plaintiff, who stated, in effect, that the letter of Sep¬ tember 16, 1891, had been sent to the com¬ missioners with her approval, and that noth¬ ing had been paid her on account of the award. For the defendant, John W. Ross, who was a commissioner at the time of the appointment of Mr. Johnson, testified that he was an attorney at law, knew the difference between an arbitration and order of reference for a report, and that his understanding when the appointment of Mr. Johnson as referee was made was that the appointment was not of an arbitrator, but was simply one of refer¬ ence. He further testified “there was no reeoi’d of the appointment of the referee, ex¬ cept the one in evidence, unless the pencil memorandum may be taken as a record.” The witness denied that he made statements attributed to him by the witness for the plaintiff, to the effect that it was the inten¬ tion of the commissioners that the decision of Mr. Johnson should be final.

After Mr. Ross had concluded his testi¬ mony, the record and proceedings in action No. 24,279 were introduced in evidence on behalf of the defendant. On the settlement of the bill of exceptions a dispute arose as to Whether the papers attached to the report of the referee had been put in evidence by the 122

offer made, but it is unnecessary to notice the action taken by the trial court with respect to that controversy.

In rebuttal, Mr. Williamson reiterated statements as to alleged declarations of Mr.

Itoss regarding the finality- of the decision of the referee. On cross-examination he said:

“That he wrote the letter of September 16,

1891, at his office, 912 F sti'eet; that he did not know why the District filed exceptions, as it was understood that the report was to be final; that witness filed the motion to con¬ firm the award because he thought it the best thing, the only thing, that could then be done, and that he thought it would be simply a matter of form, and he would have confirma¬ tion at once of the award, and that the money would be paid; but the District, instead of doing that, violated its agreement; that wit¬ ness *did not remember ever consenting tothe[169 filing of exceptions to the award. Now that counsel shows him the paper which is the ex¬ ception to the award, witness reipembers that he signed the paper consenting that the ex¬ ceptions should be filed nunc pro tunc. Mr. Richardson came to him and asked him if he would make any special objection to the exceptions being filed; that it ought to be filed, so that the District might make their objections, and for that purpose he did it, and did not consent to it because he thought it was not final; that there was not a copy of the award served by him on the comrnis- sioners; that Mr. Johnson was their arbitra¬ tor, and it was not for witness to serve them with a copy.”

The evidence was then closed. The trial judge granted a request of the defendant that the jury be instructed to render a verdict for the defendant in the first action, and an excep¬ tion was duly noted on behalf of the adminis¬ tratrix. The trial judge also granted a re¬ quest of counsel for the plaintiff, in substance that the jury be instructed to find for the plaintiff if they found from the evidence that the commissioners accepted the proposition contained in Mr. Williamson’s letter, that in pursuance of such acceptance the commission¬ ers made the order ol January 11, 1892, and that the hearing before Mr Johnson was pro¬ ceeded with under such appointment, and the declaration amended at the hearing by con¬ sent of counsel.' An exception was taken to the granting of this instruction.

The following requests for instructions were then asked on behalf of the defendant, which being overruled, separate exceptions were noted:

“2. The jury are instructed, on the whole evidence in cause No. 34,564, they are to ren¬ der a verdict for the defendant.

“3. The jury are instructed that the com¬ missioners of the District of Columbia were without authority to agree to submit the matters in controversy in the case of P.ailey, Adm’r, v. The District of Columbia, at law,

No. 24,279, to the final award of an arbitra¬ tor, but that said commissioners had author¬ ity to agree to refer the case for the award and report of a referee, subject to the approv¬ al of the court”

171 U. S.

i«97

lmsibict op Columbia v. Bailly.

16y, 170

“5. The jury are instructed that the plain-

tiff, as administratrix* of the estate of her deceased husband, was without authority to agree to refer the claim of the estate to arbi¬ tration without the previous direction of the supreme court of the District of Columbia, holding a special term for orphans’ court busi¬ ness.”

The bill of exception also states that ex¬ ceptions were taken on behalf of the District to portions of the general charge of the court contained in brackets, but no portion of the charge, as contained in the printed record, is so marked.

A verdict was returned finding in favor of the defendant in action No. 24,279, and in favor of the plaintiff for $10,519.20 and inter¬ est in action No. 24,564. Judgment was sub¬ sequently entered upon the verdict, and both parties prosecuted error. The court of ap¬ peals of the District having affirmed the judg¬ ment (9 App. D. C. 360), each party obtained the allowance of a writ of error from the court and the consolidated cause is now here for review.

Messrs. Sidney T. Tliomas and Andrew B. Duvall for District of Columbia:

A written submission cannot be varied by parol evidence. Neither is it competent to show by parol evidence what the written submission in fact was.

Efner v. Shaw, 2 Wend. 567; Me, Near v. Bailey, 18 Me. 251; DeLong v. Stanton, 9 Johns. 3S.

A memorandum of an agreement to refer is wholly superseded In’ a subsequent complete reference of submission. And the verbal agreement made prior to, or contempora¬ neously with, a written submission is merged in the latter.

Morse, Arbitration & Award, 63; Billing- ion v. Sprague, 22 hie. 34; Boring v. Alden,

3 Met. 576; Symonds v. Mayo, 1U Cush. 39; Palmer v. Green, 6 Conn. 14.

A case submitted to arbitration pendente life will in no case be considered discontin¬ ued where the terms of the submission show the intention of the parties not to discon¬ tinue.

Jacoby v. Johnston, 1 Hun. 212; TTenrne v. Broun, 07 Me. 156; Ensign v. St. Louis t£ S. F. It. Co. 62 How. Pr. 123.

The practical interpretation put upon the agreement by the parties was that the ref¬ eree was to make a report only. This con¬ trols. Chicago v. Sheldon, 9 Wall. 54 (19: 597).

The plaintiff sues as an administratrix; as such, she was without power to submit alleged differences to arbitration. Clark v. Bogle, 52 J11. 427.

If an arbitrator discloses in his award the ground of Ids decision the same is reviewa- ble, and. if contrary to law, may beset aside. State, Calvert, v. Williams, 9 Gill, 172: Oli¬ ver v. Heap, 2 Harr. & M’H. 477; Ilcuitt v. State, Brown, 6 Harr. & J. 97 ; Goldsmith v. Tilly, 1 Harr. & J. 361; Tillard v. Fisher,

3 Harr & M'H. 118; Woods v. Hatchett, 47 Md. 390; Kent v. Elsiof, 3 East, 18; Knox 171 U. S.

v. Walton, 2 Wash. C. C. 507 ; Kelly v. John¬ son, 3 Wash. C. C. 47; Conger v. Janies, 2 Swan, 215; Billings, Awards, p. 61.

A submission under a statute which re¬ quires the court to “approve” the award gives the court power to inquire into the de¬ cision of the arbitrators as regards mattera of law.

Allen v. Miles, 4 Harr. 234.

The court is bound to set aside an award which is manifestly against the law and facts.

Allen v. Miles, 4 Harr. (Del.) 236; Hurst v. Hurst, 1 Wash. C. C. 60; Williams v. Craig, 1 Dali. 315 (1: 153) ; Guvett v. Reed, 4 Yeates, 461.

Mr. A.’ S. Worthington, for Elizabeth L. W. Bailey, Administratrix.

This is a case in which a part only of the contract was in writing. That being so, the whole matter was open to oral evidence to show what was the real agreement between the parties.

Hays v. Hays, 23 Wend. 26.3.

It must be presumed that there was evi¬ dence to sustain the award.

United States v. Farragut, 22 Wall. 415 (22: 879).

An administrator has power to submit a claim, and especially one that is already in litigation, to arbitration.

3 Wins. Exrs. bottom page 1801, note i;

2 Woerner, Am. Law of Administration, § 327; Lyle v. Rodgers, 5 Wheat. 406 (5: 117) ; Morse, Arbitration & Award, 19, and cases cited.

The commissioners of the District are also authorized to submit to arbitration a claim against the municipality which they repre¬ sent, especially when an action is peudinor to enforce the claim.

1 Dill. Mun. Corp. § 478; Salmon t v. Wash¬ ington & G. R. Co. 3 Mackey, .357.

If the award is within the submission and contains the honest decision of the arbitra¬ tors after a full and fair hearing of the par¬ ties, a court of equity will not set it aside for error either in law or in fact.

Bure hell v. Marsh, 17 How. 349 (15: 99) ; Smith v. Morse, 9 Wall. 82 (19: 599).

Courts of justice in their latest decisions have manifested a disposition to treat awards with more liberality than formerly. Everything is to be intended in favor of an award.

Ebert v. Ebert. 5 Md. 359; Roloson v. Car- son, 8 Md. 220; Garitee v. Carter, 1C Aid. 3U9; Maryland <& D. R. Co. v. Porter, 19 Md. 458; Willard v. Horsey, 22 Md. 89.

Several cases are cited in the opposing brief in support of their proposition that the submission to arbitration of a pending action at law will not necessarily of itself work a discontinuance of the action. On the other hand, it has been frequently held that the effect of such reference is to discontinue the pending suit.

Miller v. Vaughan, 1 Johns. 315; Johnson v. Parmely, 17 Johns. 129; Camp v. Root, 18 Johns. 22; Dodge v. Waterbary, 8 Cow. 136; llathbone v. Lownsbury , 2 Wend, 595 : Towns

123

I lU-i 73

Supreme Court of the United States.

Oct. Term,

V. Wilcox, 12 Wend. 503; Green v. Patchen, 13 Wend. 293; Mooers v. Allen, 35 Me. 276, 58 Am. Dec. 700; CrooJcer v. Buck, 4) Me. 355; Eddings v. Gillespie, 12 Heisk. 548; Jewell v. Blankenship, 10 Yerg. 439; Muck- ey v. Pierce, 3 Wis. 307 ; Cunningham v. Cuiig, 53 Ill. 252.

Mr. Justice White delivered the opinion of the court:

The decision of this controversy involves two propositions. Did the commissioners of the District of Columbia have the power to agree to submit the claim in issue to the award of an arbitrator? And if they did have the power, did they lawfully exercise it? To answer either of these questions it be¬ comes essential to ascertain whether an agree¬ ment to submit to arbitration involves the power to contract. Both of the matters above stated depend upon this last inquiry, because both the claim that th@ District of Columbia did not in valid form exercise the power to submit to arbitration, and the assertion that if they so did they were not authorized to that end, rest on the claim that the subrnis- [171]sion was not made in the form ‘required by law to constitute a contract, and even if the al¬ leged award was in legal form, 'nevertheless the District commissioners were without power to contract for that purpose.

In determining whether an agreement to ar¬ bitrate involves the power to contract we eliminate at once from consideration consents to arbitrate made under a rule of court, by consent, in a pending suit, and shall consider only whether an agreement to arbitrate not under rule of court or within the terms of a statute enacted for such purpose is or is not a contract. We do this, because there is no pretense in the case at bar that the submis¬ sion to arbitration was under a rule of court or equivalent thereto. Indeed, the courts be¬ low held that the submission of the claim in question to arbitration was a purely common- law one and not made under a statute or rule of court; and in consequence of these views the courts held it to be their duty to make the award executory by rendering a judg¬ ment thereon, on the assumption that the parties, having agreed to a common-law sub¬ mission, were bound by reason thereof to abide by the award of the arbitrator.

The general rule is, “that everyone who is capable of making a disposition of his prop¬ erty, or a release of his right, may make a submission to an award; but no one can, who is either under a natural or civil incapacity of contracting.” Kyd, p. 35; Russell, Arbi¬ trators, p. 14. And Morse, in the opening paragraph of his treatise on Arbitration and Awai'd (p. 3), says: “A submission is a con¬ tract.” And again, at p. 50: “The submis¬ sion is the agreement of the parties to refer. It is therefore a contract, and will in general be governed by the law concerning contracts.” In Witcher v. Witcher, 49 N. H. 176, the su¬ preme court of New Hampshire said (p. 180) : “A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and be bound by 124

their award, and the submission itself implies an agreement to abide the result, even if no such agreement were expressed.” It was be¬ cause a submission to arbitration had the force of a contract, that at common law a submission by a corporation aggregate was required to be the act *of the corporate body[172J (Russell, Arbitrators, 5th ed. p. 20); which act was of necessity required to be evidenced in a particular manner.

It is true that an executor, at common law, had the power to submit to an award.

But this power arose by reason of the full dominion which the law gave the executor or administrator over the assets, and the full discretion which it vested in him for the set¬ tlement and liquidation of all claims due to and from the estate. Wheatley v. Martin,

6 Leigh, 64; Wamsley v. Wamslcy, 26 W. Va.

46; Wood v. Tunnicun, 74 N. Y. 43. Whilst, however, the agreement of the executor to a common-law submission was binding upon him, such a consent on his papt did not pro¬ tect him from being called to an account by the beneficiaries of the estate, if the submis¬ sion proved not to be to their advantage, be¬ cause the submission was a voluntary act of the executor and was not the equivalent of a judicial finding. 3 Wins. Exrs. p. 326, and authorities cited. So, also, the power of a municipal corporation to arbitrate arises from its authority to liquidate and settle claims, and the rule on this subject is thus stated by Dillon (Mun. Corp. 4th ed. § 473) ■

“As a general proposition, municipal cor¬ porations have, unless specially restricted, the same powers to liquidate claims and in¬ debtedness that natural persons have, and from that source proceeds power to adjust all disputed claims, and when the amount is as¬ certained to pay the same as other indebted¬ ness. It would seem to follow therefrom that a municipal corporation, unless disabled by positive law, could submit to arbitration all unsettled claims with the same liability to perform the award as would rest upon a natural person, provided, of course, that such power be exercised by ordinance or resolution of the corporate authorities.”

In the early case of Brady v. Mayor, etc. of Brooklyn, 1 Barb. 584, 589, the power of a municipal corporation to submit to arbitra¬ tion was ascribed to the capacity to contract, with a liability to pay, and it was held that corporations have all the powers of ordinary parties as respects their contracts, except when they are restricted expressly, or by necessary implication. In the *ease£j73] of minor public officials or corporations, such as selectmen and school districts, the power to arbitrate has been clearly rested upon the existence of the right to adjust and settle claims of the par¬ ticular character which had been sub¬ mitted to arbitration. Dix v. Town of Dum- merston, 19 Vt. 262; District Township of Walnut v. Rankin, 70 Iowa, 65. Indeed, the proposition that an independent agreement to submit to an award must depend for ita validity upon the existence of the right to contract is so elementary that further cita-

171 U. S.

i^iomioT of Colombia v. Bailey.

173-175

tion of authority to support it is unneces¬ sary.

Examining, then, the questions we have stated in their inverse order, we proceed to in¬ quire whether the commissioners of the Dis¬ trict of Columbia had the power to enter into a contract of the nature of that under consid¬ eration. The solution of this inquiry re¬ quires a brief examination of the statutes, from which alone the powers of the commis¬ sioners of the District are derived.

By chapter 337, act of June 20, 1874, “An Act for the Government of the District of Columbia, and Other Purposes” (18 Stat. at L. 116), the commission provided for in § 2 was vested with the power and authority of the then governor or board of public works of the District, except as thereinafter limited, and it was provided that “said commission, in the exercise of such power or authority, shall make no contract, nor incur any obliga¬ tion, other than such contracts and obliga¬ tions as may be necessary to the faithful ad¬ ministration of the valid laws enacted for the government of said District, to the execution of existing legal obligations and contracts and to the protection or preservation of im¬ provements existing, or commenced and not completed, at the time of the passage of this act.”

By chapter ISO, act of June 11, 1878, “An Act Providing a Permanent Form of Govern¬ ment for the District of Columbia” (20 Stat. at L. 102) , the District and the property and persons therein were made subject to Ihe provisions of the act, “and also to any exist¬ ing laws applicable thereto not hereby re¬ pealed or inconsistent with the provisions of this act.” The commissioners provided for in the act were, by § 3, vested with all the pow- (174]ers,* rights, duties, and privileges lawfully ex¬ ercised by, and all property, estate, and effects vested in, ihe commissioner? appointed under the provisions of the act of June 20, 1874, and were given power, subject to the limitations and provisions contained in the act, to apply the taxes or other revenues of the District t° the payment of the current expenses thereof, to the support of the public schools, the fire department, and the police. It was expressly enacted, however, in the same section, that the commissioners in the exercise of the duties, powers, and authority vestec in them “shall make no contract, nor incur any obligation, other than such con¬ tracts and obligations as are hereinafter pro¬ vided for and shall be approved by Congress.” In the same section it wras further provided that the commissioners should annually sub¬ mit to the Secretary of the Treasury, for his examination and approval and transmission by him to Congress, a statement “showing in detail the work proposed to be undertaken by the commissioners during the fiscal year next ensuing, and the estimated cost thereof; also the cost of constructing, repairing and maintaining all bridges authorized by law across the Potomac river within the District of Columbia, and also all other streams in said District; the cost of maintaining all public institutions of cnarity, reformatories,

171 U. S.

and prisons belonging or controlled wholly or in part by the District of Columbia, and which are now by law supported wholly or in part by the United States or District of Columbia ; and also the expenses of the Wash¬ ington aqueduct and its appurtenances; ani also an itemized statement and estimate of the amount necessaiy to defray'- the expenses of the government of the District of Columbia for the next fiscal year.” Of the estimates as finally approved by Congress, the act pro¬ vided that 50 per cent should be appropriated for by Congress, and the remaining 50 per cent assessed upon the taxable property and privileges in the District other than the prop¬ erty of the United States and of the District of Columbia. In the 5th section of the act provision was made for the letting by con¬ tract, after due advertisement, of all work of repair on streets, etc., where the cost would exceed $1,000, and *it was also in said section[175] stipulated that “all contracts for the con¬ struction, improvement, alteration, or re¬ pairs of the streets, avenues, highways, alleys, gutters, sewers, and all work of like nature shall be made and entered into only by and with the official unanimous consent of the commissioners of the District, and all con¬ tracts shall be copied in a book kept for that purpose and be signed by the said commis¬ sioners, and no contract involving an expen¬ diture of more than $100 shall be valid until recorded and signed as aforesaid.”

By § 37 of chap. 62, act of February 21,

1871 (16 Stat. at L. 427), it was provided as follows:

“All contracts made by the said board of public works shall be in writing, and shall be signed by the parties making the same, and a copy thereof shall be filed in the office of the secretary of the District, and said board of public works shall have no powrer to make contracts to bind said District to the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall have been made.”

This section is deemed to be applicable to the present commissioners. Comp. Stat. D.

C. §§ 30, 31, pp. 201, 202. So, also, by § 15 of the act of 1871 (16 Stat. at L. 423, chap.

62), it was provided that the legislative as¬ sembly should not “authorize the payment of any claim or part thereof, hereafter created against the District under any contract or agreement made, without express authority of law, and all such unauthorized agreements or contracts shall be null and void.”

Section 13 of the act of June 1, 1878, em¬ bodies the 2d section of the joint resolution approved March 14, 1876 (19 Stat. at L. 211,

§2), which made it a misdemeanor for any officer or person to increase or aid or abet in increasing the total indebtedness of the Dis¬ trict.

Under the statutes of 1874 and 1878, above referred to, it has been held that the District of Columbia still continued to be a municipal corporation, and that :t was subject to the operation of a statute of limitations (Metro¬ politan Railroad Go. v. District of Columbia,

132 U. S. 1 [33: 231]), and was also liable for

125

176-178

Supreme Court of

[176]*damages caused by a neglect to repair the streets within the District (District of Col¬ umbia v. Woodbury, 136 U. S. 450 [34:472] ) . But the mere fact that the District is a mu¬ nicipal corporation is not decisive of the ques¬ tion whether or not the commissioners of the District had power to make a contract to sub¬ mit to an award, for, as we have seen, it is not the mere existence ol municipal corporate being from which the power to make a sub¬ mission to arbitration is deduced, but that the municipal corporation by which such an agreement is entered into has power to con¬ tract, to settle and adjust debts; in other words, all the general attributes which nor¬ mally attach to and result from municipal corporate existence. Recurring to the stat utes relating to the commissioners of the District of Columbia, it is clear from thei face that these officers are without general power to contract debts, or to adjust and pay the same; that, on the contrary, the statutes expressly deprive them ol such power, and limit the scope of their authority to the mere execution of contracts previously sanctioned by Congress or which they are authorized to make by express statutory authority. The necessary operation of these provisions of the statutes is to cause the District commissioners to be merely administrative officers with min¬ isterial powers only. The sum of the munici¬ pal powers of the District of Columbia are neither vested in nor exercised by the District commissioners. They are, on the contrary, vested in the Congress of the United States, acting pro hac vice as the legislative body of ■the District, and the commissioners of the District discharge the functions of adminis¬ trative officials.

There is no authority for holding that a mere administrative officer of a municipal cor¬ poration, simply because of the absence of a statutory inhibition, has the power, without the consent of the corporation speaking through its municipal legislative body, to bind the corporation by a common-law sub¬ mission. And this being true, with how much less reason can it be contended that the ad¬ ministrative officers of the District have such power without the consent of Congress, when the acts defining the powers of the eommis eioners, by clear and necessary implication, contain an express prohibition to the con¬ trary?

[177] * Nor is it in reason sound to say that be¬

cause the District commissioners have the power to sue and be sued, they have therefore the authority to enter into a contract to sub¬ mit a claim preferred against the District to arbitration, and thus to oust the courts of jurisdiction, when no authority is conferred upon the commissioners to contract to pay a claim of the character embraced in the arbi¬ tration, and no appropriation had been made by -Congress for the payment of any such claim. It cannot be said that hecause Con¬ gress had appropriated for the improvement of streets, and therefore authorized a con¬ tract for such improvement to the extent of the appropriation, that it had also authorized and appropriated for a claim in damages

phe United States. Oct. Term,

asserted to have arisen from the fact that work had been stopped because the appropriation made by Congress had been exhausted. The appropriation of money to improve streets was in no sense the appropriation of money to pay a claim for unliquidated damages aris¬ ing) not for work -and labor performed and materials furnished, but from the refusal to permit the performance of work and labor and the furnishing of materials.

Aside from the prohibition imposed on the commissioners of the District by the acts of Congress against entering into contracts for the payment of money for any claim not specifically appropriated for, an agreement to submit the claim in question to the arbitra¬ ment of a single individual was, if valid, a contract binding the District to pay any sum of money which the arbitrator might award.

It cannot be doubted that if the District commissioners themselves had seen fit to pass a resolution reciting that the appropriation by Congress for the improvement of the streets had been exhausted, and that a given sum of money was set aside to pay a claim for damages preferred against the District for having contracted when there was no ap¬ propriation, such action would have been, un¬ der the statutes, ultra vires. But if the ex¬ press action of the commissioners to this end would have been void, how can it be con¬ tended that by indirection, that is, by enter¬ ing into an agreement to submit to an award, the commissioners had the power to delegate to a third person an authority which *fhey[1781 themselves did not possess? Whilst the fun- J damental want of power in the District com¬ missioners to agree to a common-law sub¬ mission is decisive, there is another view which is equally so. By the express terms of the statute the commissioners are forbid¬ den to enter into any contract binding the District for the payment of any sum of monev in excess of $100, unless the same is reduced to writing and is recorded in a book to be kept for that purpose, and signed by all the Commissioners, the statute declaring, in ex¬ press terms, that no contract shall 'be valid unless recorded as aforesaid. This mandatory provision of the statute clearly makes the form in which a contract is embodied of the essence of the contract. In other words, by virtue of the restrictions and inhibitions of the statute a contract calling for an expen¬ diture in excess of $100 cannot take effect unless made in the form stated. The form, therefore, becomes a matter of fundamental right, and illustrates the application of the maxim Forma dat esse rei. That the mere statement of the appointment of a referee on the minutes without the signature of any of the commissioners did not complv with the requirements referred to, is too clear for dis¬ cussion. The attempt to give effect to such entry as a contract without regard to the re¬ quirements of the law illustrates the wisdom of the statute and the evil of disregarding it, for on the trial two of the three commission¬ ers testified, one on behalf of the plaintiff and the other on behalf of the defendant, and swore to directly opposite views as to

171 U. S.

Youjng v. Amt.

173-181

whether or not there had been a common-law eubmission by the Commissioners.

We have considered what has been referred to by counsel as the order of the commission¬ ers, according to its terms, which embraced only the matters contained in the action then pending, and have not regarded the parol evidence which sought to vary and contra¬ dict the writing by establishing that it was intended thereby to embrace a claim which had not been asserted in the action. The views we have advanced being decisive against the legality of the alleged award, it follows that the judgment in favor of the ad¬ ministratrix based thereon must be reversed. As, however, the consolidation of the action [179]* upon the award with the original action for damages for breach of the contract for the resurfacing, and the trial of such consoli¬ dated cause, proceeded upon the hypothesis that a valid agreement to arbitrate had been entered into, the ends of justice will be sub¬ served by also reversing the judgment in favor of the District entered in the original action. It is therefore ordered that the judgments he reversed, and the eases remand¬ ed, with directions to dismiss the action No. 34,564 founded upon the alleged award, and to grant a new trial in action No. 24,279.