One who examines the cases will probably reach the conclusion that the criticism of the law concerning agreements to arbitrate made by Judge Hough,66 is well founded except where the agreement is oppressive or unfair to one of the parties, as where an arbitrator is agreed upon who is either a party or so identified with one of the parties as to be unlikely to render an unbiased judgment.67 The statutes with reference to arbigoods or services if satisfactory to the purchaser or employee, supra, {44. In Chicago, B. & Q. R. Co. v. Healy, 76 Neb. 783, 786, 107 N. W. 1006, 111 N. W. 598, 10 L. R. A. (N. S.) 198, 124 Am. St. Rep. 830, the plaintiff's intestate was employed by a railroad company and had entered into a contract that if he should accept certain benefits provided in a relief department of the company, he would forfeit all right to sue for damages. His widow accepted benefits from the relief department but, nevertheless, was allowed to sue as administratrix.

66 See supra, Sec. 1719, and infra, n. 68.

67In White v. Middlesex R. Co., 135 Mass. 216, the plaintiff brought action to recover $65 deposited by him with the defendant corporation under a written agreement providing, among other things, that the plaintiff, who was about to enter the defendant's employ as a conductor, should, upon entering such employ, deposit the sum of $65 to be retained by the defendant, together with interest accrued thereon and all wages that might be due him, as security for the proper discharge of his duties; that, in case of a breach by the plaintiff, the defendant's president "shall be the sole judge between the company and the conductor whether the company is entitled to retain the whole or any part of said $65 and interest, and all wages that may at any time be due him, as liquidated damages." The action was held maintainable though the president adjudged that the railroad was entitled to retain the whole deposit. The court held the provision of the contract invalid.

See, however, the almost identical case of London Tramways Go. v. Bailey, L. R. 3 Q. B. D. 217, where the judgment was for the company. See also Wilson v. Glasgow Tramways & Omnibus Co., 5 Sc. Sess. Gas. (4th ser.), 981, and Glasgow Tramway & Omnibus Co. v. Dempsay, 3 Coup. Just. 440, and consider also decisions upholding contracts whereby an architect or engineer of one of the parties is given authority to decide questions in dispute between them, supra, {{ 794-798; also cases of contracts to pay for tration in many jurisdictions certainly preclude the idea that the settlement of disputes in that way is undesirable.88 Even the requirement of the form of a condition precedent as a requisite for denying relief by legal proceedings until arbitration has been had, savors of excessive technicality; for the nature of the provision necessarily indicates that the intention of the parties can be effectuated only by regarding the stipulation as a condition. A promise in a contract to give a bond for the securing performance of other promises in the contract is held to create a condition precedent to liability on the other promises, because otherwise the stipulation would be ineffective.

68 In United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 Fed. 1006, 1011, Hough, J., said: "The English Arbitration Act has compelled the courts of that country to abandon the doctrine that it is wrong or wicked to agree to stay away from the courts when disputes arise. It is highly characteristic of lawyers that, when thus coerced by the Legislature, the wisdom of previous decisions begins to be doubted. In Ham-lyn v. Talisker Distillery, [1894] App. Cas. 202, Lord Watson said: 'The rule that a reference to arbiters not named cannot be enforced does not appear to me to rest on any essential considerations of public policy. Even if an opposite inference were deducible from the authorities by which it was established, the rule has been so largely trenched upon by the legislation of the last 50 years . . . that I should hesitate to affirm that the policy upon which it was originally based could now be regarded as of cardinal importance.'"

In Brocklehurst & Potter Co. 0. Marsch, 225 Mass. 3,113 N. E. 646, the court said: "There is doubt about the validity of any arbitration clause which would constitute one party to a dispute a member of a board of arbitration to pass upon his own claims. Arbitration implies the exercise of the judicial function. An arbitrator ought to be free from prejudice and able to maintain a fair attitude of mind toward the subject of controversy. It would be a travesty upon all ideas of judicial propriety or of judicial work for a man to be an arbitrator to settle the amount of his own liability. It is contrary to natural right and fundamental principles of the common law for one to judge his own cause. Pearoe 0. At-wood, 13 Mass. 324; Strong 0. Strong, 9 Cush. 560, 570; McGregor 0. Crane, 98 Mass. 530. See in this connection Hickman 0. Roberts, [1913] A. C. 229; Bristol Corp. 0. Aird, [1913] A. C. 241, 247,248,254,255. There is nothing in Fox 0. Haselton, 10 Pick. 275, which gives countenance to the contention that an agreement to submit a controversy to the decision of a party can be sustained."

It is a condition implied in fact.69 Somewhat similarly it may fairly be argued a provision for arbitration of disputes under a contract can only be effective if the arbitration precedes litigation rather than follows it.70