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Taking the whole award into considera- | work to be done and the materials furnished tion, it is plain that the arbitrators meant by under the direction of an engineer to be their language "full performance." The only selected by the architect and to the satisfacmatter in dispute was the grouting. The tion of the architect and engineer; and, in award determines: (1) That the blocks were case the work and materials were unsatislaid on a cushion of one inch of sand, strict- factory, the contractor, on being notified in ly in accordance with the specifications. (2) writing, should remove the same and subUpon this pavement, so laid, was spread a stitute materials satisfactory; that all work coating of grout of cement and sand properly should be done to the satisfaction of the prepared, and of materials satisfactory to architect and engineer, who should be the the parties concerned and in compliance with sole judges of the fitness of the work and the specifications above mentioned. (3) After materials. The specifications required: "Secstating that the only objection raised regard- tional covering * air cell, class A." ing the work was the manner of grouting The auditor found that the air cell furnishand that great stress was laid on the fact ed complied with the specification, but the that before grouting the joints should have architect and engineer both ignorantly supbeen raked out or cleaned of sand, the award posed that the only covering that would comsays: "This raking out of joints was not ply with the specifications was manufacturcalled for in the specifications, and if not ed by a particular manufacturer. He did not called for certainly was not contemplated, find that the architect and engineer were and under such specifications it was not com- corrupt, but acted through ignorance. The pulsory upon the paving company to rake or court said: "The architect by the terms of clean the sand from such joints." (4) That the contract was constituted an arbitrator by there was no demand made during the prog- the parties to determine practical questions ress of the work to rake or clean out the of performance that might arise during the joints. (5) There was no objection to the progress of the construction. So long as he work until after completion. Such a finding acted honestly and with reasonable efficiency, of facts by the arbitrators could lead to no his action was binding upon the parties." other award than that of full performance. The action of the architect was sustained, [5] To the ordinary mind the specifications and in concluding the court said: "Although as to grouting seem free from doubt. They provide for the complete filling of the joints and interstices with grout. "Joint" is defined in Funk & Wagnall's Standard Dictionary as follows: "In Mechanical Art-Masonry. The permanent meeting surface of two bodies as stones or bricks, held together by weight, cement, or otherwise." "The place where the ends of two rails meet or nearly touch." This definition indicates that the "joint" in paving blocks is the space between the side faces of the blocks brought together or nearly in touch.

A fair reading of these specifications in the light of what was sought to be accomplished would seem to lead one to believe that the parties intended that the joints and interstices were to be filled to the full depth with grout, thus binding the pavement in the solid mass above referred to so that no single block would bear the impact of travel, but through the concrete binder the force of the impact would be distributed over a wide area. It would seem idle to say that the purpose contemplated was to treat the pavement to a cement wash which would in no sense operate to bind the pavement, and it is apparent that grouting to a depth of one inch would be little better.

the case appears to be one of great apparent hardship to the plaintiffs, the governing rules of law make no other result possible upon these exceptions.”

In the case of Norcross v. Wyman, 187 Mass. 25, 72 N. E. 347, the specification provided as follows: "The architects shall have the sole interpretation of their drawings and specifications, except as otherwise provided or specified. Their decision on all questions relative to the drawings and specifications or contracts for said building shall be final and binding on the owner and contractor." The plaintiff was required to provide a suitable foundation for the building. Quicksand was found, resulting in more work being required than was contemplated by the parties. It was contended that this work was extra and should be so paid for. The architect decided that the clause in the specification as to excavation was not inserted with the intent that the expense of the work made necessary by quicksand should be borne by the plaintiff. The court said: "If the architects were clothed with authority to make this decision, it is conclusive between the parties. * For the purposes of their decision they were free to adopt such legal principles as they honestly believed applicable, and to act upon such evi

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[6] Assuming that a court would, in construing this grouting clause, determine that dence as they chose to receive. its true meaning required the raking and The arbitrator, therefore, correctly ruled cleaning out of the joints contrary to the that the architects were authorized to act view of the majority of the arbitrators, has it the power to do so in this case?

In the case of Evans v. Middlesex County, 209 Mass. 474, 95 N. E. 897, the contract con

on the question submitted to them, and their decision thereon was binding on the defendant. As the award can well rest on this ground, it becomes of no consequence to con

required the plaintiff to excavate through the complainant to prove partiality, as every the quicksand."

[7] The arbitrators on the submission were not bound to award on mere dry principles of law, but might do so according to the principles of equity and good conscience (Ruckman v. Ransom, 23 N. J. Eq. 118, 120), and this is what the arbitrators in this case stated their purpose to be prior to hearing evidence.

The conclusion, therefore, on the first point is that the award was not in excess of the submission, and must stand, unless the arbitrators, or some of them, were guilty of fraud, corruption, or partiality.

intendment favors the validity of the award and the impartiality of the arbitrators. Therefore, the facts alleged by Mr. Owen and denied by Mr. Morrison cannot aid the complainant unless supported by additional proofs. These proofs, if any, are found in the minutes of the hearing before the arbitrators, and may be examined in aid of the inquiry into the question of partiality. Goodman v. Sayers, 2 Jac. & Walk. 250. "

The minutes of the arbitrators show that the first witnesses called were on behalf of the complainant and were examined in chief by Mr. Owen and subsequently by Mr. MorThe second point urged for setting aside rison. The witnesses of the defendant were the award is partiality exhibited by the arbi-examined in chief by Mr, Morrison and aftertrator, Morrison, who was selected by the wards by Mr. Owen, and this course was condefendant. Mr. Owen, the arbitrator who tinued throughout the hearing. Bearing on dissented from the award and who was se- the statement of Mr. Owen that Mr. Morrilected by the complainant, says in his affi- son stated that he was the representative of davit annexed to the amended bill that, after the defendant and expected to look out for Morrison and he had agreed upon the choice their interest, and that he (Owen) should do of Mr. Olney as the third arbitrator, Mr. likewise for the complainant, the action of Morrison stated to him (Owen) that he (Mor- Mr. Morrison, as reflected by the stenographrison) was the representative of the Uvalde ic minutes of the proceedings before the arAsphalt Paving Company, and expected, in bitrators, is very important, not only for the the arbitration, to look out for their inter- purpose of ascertaining the truth of the ests, and said that he (Owen) should act statement, but to discover his conception of likewise on the part of the Central Union his duty. These minutes disclose the fact Stock Yards Company. This is denied by Mr. that his method of examining the witnesses Morrison. Mr. Owen also states that the ar- on the part of the defendant was such as bitrators decided, before taking testimony, counsel for a defendant would adopt to bring that more satisfactory results would be ob- out matters favorable to the defendant, viz., tained by treating the dispute as one for the kind, gentle, and suggestive. On the condecision of engineers, and that they should trary, his examination of the witnesses of not attempt to decide the controversy on the complainant, especially Mr. Levy, the grounds which might be considered control- complainant's engineer, was quite severe and ling by the attorneys for the respective par- sharp and was apparently so conducted with ties. With this in view, the arbitrators stat- a view to breaking down the force of their ed, before the taking of testimony had be- statements and discrediting them. His side gun, that they did not care to have witness- remarks throughout the hearing lead almost es examined and cross-examined by counsel. irresistibly to the view that he had reached Mr. Morrison agrees with the statement made a conclusion, at least, very early in the hearby Mr. Owen, excepting this, that it was not ing. This premature judgment in itself decided to deny counsel the privilege of ask- would not be evidence of partiality suffi ing questions; and it appears from the min- cient to justify setting aside the award if utes of the arbitrators that the examination based on the inspection of the premises by of witnesses was principally conducted by the arbitrators made prior to the taking of the arbitrators, with counsel and officers of testimony, when it is considered that the arthe parties occasionally asking questions. bitrators had determined to decide the questions involved as engineers, without legal technicalities.

In Brown v. Brown, 1 Vern. 57, the umpire said he "was so well satisfied as to the value of the repairs that the plaintiff might bring what witnesses he would, he should not be lieve them. He had viewed the repairs himself." The award was nevertheless sustained.

The suggestion attributed to Mr. Morrison by Mr. Owen that he (Morrison) should act as the representative of the defendant, and that Owen should perform the same function for the complainant, is not at all unlikely, as it might be considered by them that the umpire, as the impartial arbiter between the parties, would control the award. In Fox v. Hazelton, 10 Pick. (Mass.) 275, Chief Justice During the proceedings Mr. Moore, the Shaw said: "It is not infrequent in practice counsel of the complainant, commented for each party to select a friend known to strongly on this supposed partiality while have formed and expressed opinions upon Mr. Morrison was examining Mr. Levy. Hr. the subject, and preferences for the parties Morrison had asked Mr. Levy a question, respectively, trusting that these opposite prej- | and Mr. Levy, at the foot of his answer, said udices will balance each other, especially to Mr. Morrison, "Why didn't he [referring with the aid of an impartial umpire." to the defendant's superintendent] follow

plied, "He did follow the specifications just | The action was in debt on bond to perform as well as any man possibly could." This the award. The judgment below was for provoked the following discussion between the plaintiff upon the rulings of the trial Mr. Moore and Mr. Morrison: "Mr. Moore: judge. The verdict was set aside to be tried Are we getting the opinion of three fair- by a jury on the sole question of the parminded, unbiased men, or of two arbitrators tiality or misconduct of the arbitrator. In and an advocate for the paving company? this case the court said: "But, if parties These questions all point to a mind already made up, Mr. Morrison. Mr. Morrison: You are entirely mistaken. I tried to bring out the facts. Mr. Moore: We are entitled to the opinion of three unbiased men-anything that brings out the facts that bear upon this case. Mr. Morrison: What I am after is the impossibility of getting a good job under this specification and on that fill. I am talking of blocks of irregular depth; getting the blocks to one depth and having a concrete foundation under them."

made excepting as it might arise out of the misconduct, in which case the character of the misconduct, and the degree that it influenced the mind of the arbitrator, might very properly be inquired into to determine whether or not the misconduct affected him or his associates in making the award. In this case, however, if Mr. Owen's story is true, the arbitrator entered into the performance of his duty ignorantly believing that he had a right to act on behalf of the party appointing him. If this was his mental condition, he was not guilty of intentional misconduct but of such partiality as disqualified him from sitting in the board of arbitrators. No case in New Jersey is cited by counsel on either side where a court of equity was asked to set aside an award of arbitrators for partiality. The case must therefore be decided in the light of adjudged cases of other courts. It is urged, however, that Mr. Owen cannot testify against the award.

In Campbell v. Western, 3 Paige (N. Y.) 124, 137, the Chancellor said: "An arbitrator who has signed an award with his coarbitrators cannot be allowed to contradict this solemn act and to say that he did not concur in it. The signing of the report was an actual concurrence therein. And arbitrators are not permitted to make mental reservations, in opposition to the written evidence of their decisions, any more than a juror who has concurred in a general verdict would be permitted to swear he was not convinced it was right." And numerous other cases of the same character are cited by the defendant.

His

[11] These cases are not applicable, because Mr. Owen is not seeking to impeach his award. It was not his. He did not join in making it, but dissented therefrom. testimony is therefore admissible. Nat. Bank of Republic v. Darragh, 30 Hun, 29; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855.

construed the grouting clause unfavorably to the complainant's contention, a serious wrong may have been inflicted. It is not sufficient for the defendant to show that it was not asked to make repairs, renewals, or replacements under the sixth mutual covenant above set forth during the first year, and that covering a period of 31⁄2 years since the work was done only several hundred dollars were expended by the complainant in repairs. It is not charged that the work was not well done if the defendant was not required to grout in the manner contended for by the complainant. On the contrary, if the complainant's contention as to grouting is correct, it called for a pavement that would last a much greater period than a year; and this condition as to grouting is not satisfied by the manner in which the work was done. Commonwealth Roofing Co. v. Palmer Leather Co., 67 N. J. Law, 566, 52 Atl. 389. It is therefore important that an investigation into the question of partiality should be made, which might, in view of the facts, result in the setting aside of the award, with a resubmission.

To refuse the preliminary injunction would leave the complainant defenseless at law. To grant the injunction would protect its interest, and, when allowed on proper terms, the interests of the defendant can be properly safeguarded, and perhaps such a course will result in a more speedy determination of the issues involved and reduce the litigation from two suits, one at law and one in equity (both of which might be removed to the Court of Errors and Appeals for review, at great expense to the parties), to one in equity, where the case can more readily be disposed of; and, if in that disposition it is determined that the award is valid, the case of the complainant is at an end.

I have therefore concluded to advise that a preliminary injunction issue restraining the defendant from offering said award in evidence in any suit at law against the complainant or from suing the complainant on the award at law, until the further order of this court, upon substantially the following terms: The complainant shall:

before the arbitrators, it tendered itself ready (1) Pay to the defendant the sum which, to pay, namely, $4,906.60, made up as follows:

The case of the complainant is rather stronger than those where the award is at tempted to be set aside on the evidence of an arbitrator who testifies to misconduct or partiality exhibited in the conferences of the arbitrators, because here the testimony of the arbitrator is not as to what transpired in the proceedings before the arbitrators and in their conferences, but to the point that one arbitrator, before any hearing was had, declared his misconception of his obligation which, if carried out, would have been fatal to the award. The rest of his affidavit was offered to furnish the evidence that the arbitrator acted in accordance with his communicated view (Goodman v. Sayres, to which sum interest thereon shall be supra), and all the testimony before the arbitrators is in evidence under an affidavit on the part of the defendant.

[12] The case made on the amended bill and affidavits, in view of the counter affidavits, is not free from doubt. If, by reason of

Balance unpaid on contract..
$8,906 60
Allowance claimed by complainant for de-
fective performance of contract.
........... 4,000 00

added.

$4,906 60

(2) Give to the defendant a bond in a sufficient sum to secure the payment of the balance of the award, with interest and costs, if the award be sustained.

(3) Consent to a hearing on the order for

On an application for reinstatement as a member of the bar by an attorney disbarred for embezzling his client's money, restitution of the money embezzled will not as a rule be given very much weight, as it might depend more [1] After a careful consideration of this upon the attorney's financial ability or other application we have concluded that the court favoring circumstances than upon repentance or should not make any final order in the case reformation. until some definite recommendation is made by the bar through its association and ex