What other contracts may have been made | the illegality of the contract entered into by the Pullman Company with railroad com- between these parties, and its subsequent repanies would form no factor in the value of pudiation on that ground, and in regard to the contracts assigned. If others were ob- such illegality the Central Company is certained, they had never been the property of tainly as much in the wrong as the cross dethe Central Company, and the latter could fendant herein. The former knew the exonly make a pretense of a claim in regard to tent of its obligations under its charter as then by virtue of and through the illegal con- well as the latter did, and the illegal provitrac. A resort to the illegal instrument can- sions of the lease were quite as much its not be permitted for the purpose of sustain-doings as they were those of the cross defending any recovery. ant. To grant relief based upon these facts The same may be said of the patents which would be so clearly to grant relief to one of the Central Company also undertook to trans-the parties to an illegal contract, based upon fer, as they had all expired before January, the contract itself or upon alleged damages 1885. They simply protected the use of the arising out of its nonfulfilment, that nothing cars which had been constructed under them, more need be said upon that branch of the and they diminished in value as each day subject. It is emphatically an application brought them nearer to their expiration, and of the rule that in such a case the position of when that time arrived they were absolutely the defendant is the better. valueless. During all that time they were included in the consideration for the payment of rent made by the Pullman Company under the terms of the lease. The contracts and the patents must be eliminated from the value of the property. Nor can we accede to the view that the Pullman Company is liable for the earnings of the property which it realized by means of putting such property to the very use which the lease provided. It had the right while both parties acquiesced to so use the property. There is no question of trustee in the case. Root v. Lake Shore & M. S. Railroad Company, 105 U. S. 189, 215 [26:975, 984]. making a total of $727,846.50 and interest We conclude that the cross defendant is not liable for the contracts and patents transferred, nor for the possible damage the Central Company may have sustained, as above stated. It is liable for the value of the cars, furniture, etc., transferred. It is a liberal estimate of the value of this property to say that it amounted in 1885 to as much as it did in 1870, yet we are disposed to deal in as liberal a manner with the cross complainant as we fairly may, while not violating any settled principle of law, in order to give to it such measure of relief *as the circumstance [161] of the case seem to justify. We therefore take the value of the property in the cars, etc., in 1885 at the sum of $710,846.50. To The property was placed in its hands by | that, we think, should be added the $17,000 the lessor and in accordance with the terms cash received from the Central Company, of the agreement. It was not then impressed | with any trust according to any definition of that term known to us. Although the title did not pass and was not intended to pass, the lessee did nothing with the property other than was justified by the lease. His liability is based only upon an implied promise to return or make compensation therefor. This implication of a promise would not arise until one or the other party chose to terminate the lease, for the law implies such promise in order only that justice, so far as possible may be done. So long as neither party [160]takes any objection to the agreement, and both carry it out, there is no room for any differences, and no promise to return the property or make compensation is necessary, and none is therefore implied. The use of the property is lawful as between the parties, so long as the lease was not repudiated by either, and the rent compensates for the use. the repudiation the promise is then implied, tice White dissented on the ground that and it is fulfilled by the payment of the value the judgment appealed from was for the cor of the property at the time the promise is rect amount and should not be reduced. implied and interest thereon from that time. After As to the claim of the lessor that its business has been broken up, its contracts with railroads terminated and the corporation left in a condition of inability to again take up its former plans, and that all this should be regarded in the measure of the relief to which it should be entitled, the same considerations which we have already adverted to must be entertained. These are results of Although the Central Company may have been injured by the result of this lease, yet that is a misfortune which has overtaken it by reason of the rule of law which declares void a lease of such a nature, and while the company may not have incurred any moral guilt it has nevertheless violated the law by making an illegal contract and one which was against public policy, and it must take such consequences as result therefrom. The judgment appealed from must be reversed, and the case remitted to the circuit court for the eastern district of Pennsylvania, with directions to enter a judgment for the Central Transportation Company in accordance with this opinion. Mr. Justice Harlan dissented; Mr. Jus An agreement to arbitrate, not under rule of court or within the terms of a statute enacted for such purpose, is a contract. shall make no contract and incur no obliga tion which is not therein provided for and ap proved by Congress. 3. The mere statement of the appointment of a referee, on the minutes of the commissioners of the District of Columbia, without any signature thereto by the commissioners, is insufficient to constitute a contract by them under the act of Congress of June 11, 1878, requiring 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, 1898. Decided May 31, 1898. IN ERROR to the Court of Appeals of the 2. The commissioners of the District of Colum-District of Columbia to review a judgment bia had not the power to bind the District by of that court aflirming a judgment in favor of the plaintiff, Elizabeth W. Bailey, as administratrix of Davis W. Bailey, deceased, N. Y. 475; Ehrman v. Stanfield, 80 Ala. 118; Conger v. Dean, 3 lowa, 463, 66 Am. Dec. 93. to arbitrators, who were to return their award Agreement of parties to submit controversy 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. note McMillan v. Allen, 98 Ga. 405. Agreement to submit to arbitrators all disputes 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. 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 NOTE.-A8 to contracts; their interpretation and validity,-see note to Bell v. Bruen, 11: 89. As to agreements to arbitrate; specific performance 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 to l'eople. Union Ins. Co., v. Nash (N. Y.) 2 L. R. A. 180. As to setting aside arbitration 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. 623. Arbitrators are not required to decide any matter before them according to law. Henry v. Hilliard, 120 N. C. 479. Occurrence of vacancy by death or othermission, where it makes no provision for filling vacancies. Wolf v. Augustine, 181 Pa. 576. The hearing of testimony by arbitrators in the absence and without notice to a party is fatal to an award against such party. Rand v. l'eel, 74 Miss. 305. Arbitration; submission to; when may be re-wise, in a board of arbitration, revokes the subvoked; when reviewed, or set aside, or void; when binding: effect of; death of arbitrator; notice of hearing; selecting umpire; costs. When submission to arbitration is revocable. Paulsen v. Manske, 126 Ill. 72; Oregon & W. Sav. Bank v. American Mortg Co. 35 Fed. Rep. 22; People, Union Ins. Co., v. Nash, 111 N. Y. Necessity of notice of hearing. The War310, 2 L. R. A. 180; Gregory v. Boston Safe De-wick, L. R. 15 Prob. Div. 159: Vessel Owners' posit & T. Co. 36 Fed. Rep. 408; Sidlinger v. Kerkow, 82 Cal. 42; Farel v. Roberts, 1 Pa. Dist. R. 743; Minneapolis & St. L. R. Co. v. Cooper, 59 Minn. 290. A party to an arbitration agreement provid Ing for a written award may revoke the same after the arbitrators have individually communicated to strangers their respective views, but before they have signed any award. Butler v. Greene, 49 Neb. 280. The right to revoke a submission to arbitration at common law must be exercised before the publication of the award. Otherwise it will be considered waived. Connecticut F. Ins. Co. v. O'Fallon, 49 Neb. 740. An agreement to submit a matter to two arbitrators, by whom an umpire is to be chos en to act only on matters of difference between the arbitrators, does not authorize one arbitrator and such umpire to return an award without a showing of difference between the arbitrators. Manufacturers' & B. F. Ins. Co. v. Mullen, 48 Neb. 620. An award of arbitrators is too uncertain to be conclusive upon the parties where it leaves the amount due from one party to the other to be determined by a reference to books of acgount involving more than a mere computation. Macher 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. Johnson, 50 Neb. 858. Effect upon common-law arbitration of statutory provisions for arbitration. New York Lumber & Wood Working Co. v. Schnieder, 119 Towing Co. v. Taylor, 126 Ill. 250: Citizens Ins. Co. v. Hamilton, 48 II. App. 593: Dormoy v. Knower, 55 Iowa, 722; Curtis v. Sacramento, 64 Cal. 102; McFarland v. Mathis, 10 Ark. 560 Hills v. Home Ins. Co. 129 Mass. 345: Conrad v. Massasoit Ins. Co. 4 Allen, 20: Wood v. Helme. 14 R. I. 325; Dreyfous v. Hart, 36 La. Ann. 929; Conger v. Dean. 3 Iowa, 463. 66 Am. Dec. 93; Lutz V. Linthicum, 8 Pet. 178 (S:909); Emery v. Owings. 7 Gill, 488, 48 Am. Dec. 580; Warren v. Tinsley, 2 U. S. App. 507, 53 Fed. Rep. 689, 3 C. C. A. 613. Award is null and void where arbitrators ap pointed by the parties, without the consent of one of the parties, called in a third arbitrator before they had failed to agree, in violation of the submission which stipulated that a third arbitrator might be called in if the original aritrators failed to agree. Christenson v. Carleton. 69 Vt. 91. Power to select umpire. Hart v. Kennedy, 47 N. J. Eq. 51; Bryan v. Jeffreys. 104 N. C. 242 McMahan v. Spinning, 51 Ind. 187; 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 arbitrators did not commence work, nor finish the work and file the award, within the time provided in the agreement of submission, where the 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 N. C. 479. three fourths of the work to be done under this contract had been completed and about $36,000 earried therefor, including $5,784.14 allowed for extra work, the commissioners notified Bailey that no more work could be against the District of Columbia, in the Supreme Court of that District upon an award for a breach of contract for resurfacing with asphaltum certain streets in the city of Washington, and in favor of the defendant in another action. Reversed, and cases remand-performed under the contract, because of the ed with directions to dismiss one action and to grant a new trial in the other. See sanie case below, 9 App. D. C. 360. Statenment by Mr. Justice White. fact that the appropriation made by Congress 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 On July 30, 1870, a contract for resurfac- action at law in the supreme court of the ing with asphaltum certain streets in the city District of Columbia against the District of [162]of Washington was awarded to the *Bailey- | Columbia to recover $25,000 as damages, French Paving Company. The agreement averred to have been sustained by the cessawas embodied in a writing signed on the one tion of the work under the contract. The part by Davis W. Bailey as general agent of District, on April 4, 1883, filed pleas, claimthe company just named, and on the other ing a set-off of $1,312.30 for damages alleged part signed and sealed by the commissioners to have been sustained by improper performof the District of Columbia. The price speci-ance of the work of resurfacing; averring fied for the work aggregated a little less than the termination of the contract by reason of $41,000. On February 12, 1880, when about the appropriation having been exhausted; on the face of the record. Reeves v. McGlochlin, 65 Mo. App. 537. Arbitrators, unless restricted by the agreement 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 Washington statutes. if fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the parties. 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 School Dist. No. 5 v. Sage, 13 Wash. 352. The conclusions of arbitrators on facts sub-parties to designated arbitrators, written down mitted to them, which are such as may be de- by a justice in his docket, is a common-law subtermined differently by fair minded and honest mission to arbitration. Climenson v. Climenpeople, are final, and not subject to review. son, 163 Pa. 451. 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. Rep. 110, 19 C. C. A. 382. An award by arbitrators will not be set aside upon a doubtiul point of law or upon a complaint 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. McGlochlin, 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 vitiated 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. Edmundson v. Wilson, 108 Ala. 118. A submission to arbitration requiring the arbitrators 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 arbitrators had come to a decision, with a statement what their finding was. as to Miller, 108 Ala. 171. Costs and expenses incurred in preparing for an arbitration, under an agreement that the compensation of the arbitrators and their expenses and those of the witnesses shall be borne and paid by the parties in a designated proportion, 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 Hun, 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 all 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 services 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, constitufs in effect 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 Anderson v. to the award after it is made. Wentz v. Bealor, 14 Pa. Co. Ct. 337. The decisions of arbitrators, under Ala. Code. 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 properly 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 publication. 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 The power of awarding the costs of arbitration is necessarily incident to the authority conferred 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. 615. The necessity for filing an award of arbitrators with the clerk as required by the Colorado This communication was referred by the commissioners to the attorney for the District, who indorsed thereon under date of October 17, 1891: and alleging that the time within which the this case may be referred, with power to hear contractor had stipulated to complete the the evidence and make an award which shall work had expired long prior to the cancela- be accepted, whether for or against us, as a tion of the contract. The plaintiff joined is- final settlement of this long and much litisue and filed a replication on April 18, 1883. gated case." 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 "This is a case which has been pending in the claimant addressed a letter, on behalf of the administratrix, to the commissioners of the court for a long time and it ought to be the District of Columbia, calling attention to disposed of. If it could be referred to some the pending case, stating that "the ground first-class referee, who will give us a full hearof said suit is for breach of contract," reciting, it would be a very good way of disposing ing the facts as to the making of the contract of it, and I should favor such a reference, as and the mode by which it was terminated, we can then attend to it at our convenience." and claiming that, at the time of such cancelation, Bailey had expended for machinery necessary to the performance of the contract $10,180; that he had at the time stock on [163]hand, $7,000; that the profit on the unexecuted 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 $30,180. Without calling the attention of the 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 proGentlemen: 1 return to you herewith a ceeded to refer to the defenses interposed in To the Hon. Commissioners, etc., etc. such suit on behalf of the District, and next stated the claim made by the contractor in communication from W. Preston Williamson, his replication, that the delay in the work Esq., relative to the case of Kailey v. The was the fault of the District. The conclu-District of Columbia, referred to me with the who would make a good referee. sion of the letter, omitting references to in- request that I give you the name of someone 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 premises, I write to ask if you will appoint some good man as a referee or arbitrator to whom the the payment of Omission to administer oaths to arbitrators Failure of an arbitrator to be sworn is not a A waiver by an assignor of a claim which, by An award of arbitrators is void where they Kan. 736. A memorandum was also sent by one of a J. W. D." A memorandum in pencil, evidently having *"Ans. Mr. Douglass. Comm'rs think this[164] reference to the foregoing. is as follows: On October 28, 1891, Assistant Attorney case should be settled in court.” Thomas sent the following letter: I would suggest either Mr. A. B. Duvall or Mr. J. H. Lichliter, both members of the bar Very respectfully, and well qualified to decide the issues in that case. S. T. Thomas, Ass't Att'y, D. C. An award of arbitrators will not be set aside for fraud, accident, or mistake unless the fraud was practised upon the arbitrators or the accident or mistake deceived and misled them. A mistake of arbitrators in weighing the facts ous rules of law, is not sufficient. Wilson v. placed before them, or their adoption of erroneWilson, 18 Colo. 615. An award of arbitrators, arrived at in pursuance of the terms of the agreement voluntarily adopted by the parties, will not be reviewed on the question of damages, unless there was corruption or partiality of the arbitrators, misHartford F. Ins. Co. v. Bonner conduct during the hearing, or fraud in the opposite party. 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 arbitrators is void where some of the necessary parties did not properly join in the submission, and and decided matters not submitted to their de the arbitrators failed to determine the issues Fortune v. Killebrew, 86 Tex. termination. 172. An application to set aside an award of arbitrators for purely technical reasons will be denied where no apparent injustice has been done the in dispute, and Woelor is contemplated, and defendant voluntarily submitted all matters amount of the award has been collected. fel v. Hammer, 159 Pa. 448. 171 U. S. The next document referring to the matter | nunc pro tunc." On March 10, 1893, a mois the following: tion for judgment was filed on behalf of the plaintiff. Office of the Ordered, that J. J. Johnson is hereby ap- Official copy furnished Mr. J. J. Johnson. Without action being had on the excep tions and motions referred to, the administratrix of Bailey, on August 8, 1893, instituted an action at law, numbered 34,564, in the supreme court of the District of Colum-[166] 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 declaration, as authorized by the rules of pracUnder this appointment, on February 17. tice of the court, what purports to be a copy 1892, the attorneys for the respective parties of the resolution appointing Mr. Johnson appeared before Mr. Johnson. It was claimed referee is set out, but the words "of the suit" by witnesses for the plaintiff at the trial of are omitted from before the words "of Bailey, the action subsequently brought to enforce administratrix." On September 2, 1893, the finding of the referee, that at the com-pleas were filed on behalf of the District, demencement of the hearing the latter gentle-nying that it had agreed to submit the matman, as well as the attorney for the administers of difference referred to in the declaratratrix, raised the question whether or not tion to the award and arbitrament of Johnunder 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 Mr. Johnson was to be a final [165]determination of the case. *Such witnesses also testified that subsequently, when a ques-still pending. It was also averred that the 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. son, and averring that Johnson had not made der of consolidation. The hearing before the referee was con- The consolidated action came on for trial cluded on July 18, 1892, when Mr. Johnson January 13, 1893. At the trial W. Preston placed on the files of the supreme court of the Williamson, a witness for the plaintiff, tesDistrict of Columbia in action numbered tified that he had sent to the commission24,279 his report as referee. The report did ers the communication of September 16, not refer to the mode by which its author 1891. Under objection and exception he had become referee. It was entitled in the was permitted to testify to conversations cause, purported to contain a synopsis of the had separately with two of the commissionpleadings, the plaintiff's claim, a statemanters, which tended to show that in the event of of the facts and the findings of "J. J. Johnson, referee." The report concluded as follows: the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee "Upon the evidence and the law I have al- or arbitrator the final determination of the lowed the plaintiff for the unexecuted bal- entire controversy referred to in Williamance of 11,385 square yards, $4,440.15, being son's letter. Also under objection and exthe profit between the cost of resurfacing the ception, the witness testified that after the streets at fifty cents per square yard and order appointing Mr. Johnson referee was eighty-nine cents, the price received, and for made by the commissioners, he and the attor the extra one-half inch I have allowed the ney for the District, in the presence of the plaintiff $6,079.05 at the contract price, ag-referee, discussed the scope of the submission, gregating the sum of $10,519.20. I do therefore find that there is due to the plaintiff from the defendant the sum of $10,519.20, besides costs." The referee al 30 fixed his fee at $550, which was paid by the administratrix. *and agreed that the decision of the referee[167] was intended by the parties to the controversy to be a final disposition of the whole matter. The indorsements on the letter of Mr. Williamson, the letter of the assistant attorney of the District, and other memoOn September 23, 1892, exceptions were randa heretofore set out were put in evidence filed on behalf of the District to this report. on behalf of the plaintiff. Mr. Hazleton, a Upon the exceptions, the attorney for the former attorney for the District, also testiplaintiff made the following indorsement:fied for the plaintiff, in substance, under ob"I consent that these exceptions be filed jection and exception, that it was the inten |