"But where the whole matter of law and fact is submitted, it may be open for the court to inquire into a mistake of law, arising from matter apparent on the award itself; as where the arbitrator has, in his award, raised the question of law, and made his award in the alternative, without expressing his own opinion; or, what is perhaps more common, where the arbitrator expresses his opinion, and, conformably to that opinion, finds in favor of one of the parties; but if the law is otherwise in the case stated, then his award is to be for the other party. In such case, there is no doubt, the court will consider the award conclusive as to the fact, and decide the question of law thus presented.
"Another case, somewhat analogous, is where it is manifest, upon the award itself, that the arbitrator intended to decide according to law, but has mistaken the law. Then it is set aside, because it is manifest that the result does not conform to the real judgment of the arbitrator. For then whatever his authority was to decide the questions of law, if controverted,, according to his own judgment, the case supposes that he intended to decide as a court of law would decide; and therefore, if such decision would be otherwise, it follows that he intended to decide the other way." See, also, 2 Story, Eq. Jur. § 1454-1459; Ching v. Ching, 6 Ves. 282; Smith v. Thorndike, 8 Greenl. 119; Bigelow v. Newell, 10 Pick. 348; necessary for the decision is to be included in the arbitration.1
§ 1372. If, however, it appear by the award itself that the arbitrator intended to decide according to the law, but made a mistake therein, the award would be set aside on the ground that it does not conform to the actual judgment and intention of the arbitrator.2 So, also, where the arbitrator decides the facts alternatively, - stating that if the law be as he supposes it, he finds for one party, but, if the law be otherwise, he finds for the other party, - the award will be conclusive as to the party, and the law will be ruled by the court.1
Kleine v. Catara, 2 Gall. 70; Young v. Walter, 9 Ves. 364; Johns v. Stevens, 3 Vt. 314; Underhill v. Van Cortlandt, 2 Johns. Ch. 339; Chace v. Westmore, 13 East, 357; Campbell v. Twemlow, 1 Price, 81; Roosevelt v. Thurman, 1 Johns. Ch. 220.
1 2 Story, Eq. Jur. § 1454; Knox v. Symmonds, 1 Ves. Jr. 369; Shep-ard v. Merrill, 2 Johns. Ch. 276. See Fairchildr. Adams, 11 Cush. 549; Austin v. Kimball, 12 Cush. 485. In Kleine v. Catara, 2 Gall. 61, Mr. Justice Story says: "Under a general submission, therefore, the arbitrators have, rightfully, a power to decide on the law and the fact; and an error in either respect ought not to be the subject of complaint by either party, for it is their own choice to be concluded by the judgment of the arbitrators. Besides, under such a general submission, the reasonable rule seems to be that the referees are not bound to award upon the mere dry principles of law applicable to the case before them. They may decide upon principles of equity and good conscience, and may make their award ex aequo et bono. We hold, in this respect, the doctrine of Lord Talbot in the South Sea Company v. Bumstead [2 Eq. Cas. Abr. 80, pl. 8], of Lord Thurlow in Knox v. Symmonds [1 Ves. Jr. 369], of the King's Bench in Ainslie v. Goff [Kyd on Awards, 351], and of the Common Pleas in Delver v. Barnes [1 Taunt. 47]. If, therefore, under an unqualified submission, the referees meaning to take upon themselves the whole responsibility, and not to refer it to the court, decide differently from what the court would on a point of law, the award ought not to be set aside. If, however, the referees mean to decide according to law, and mistake, and refer it to the court to review their decision (as in all cases where they specially state the principles on which they have acted they are presumed to do), in such cases the court will set aside the award, for it is not the award which the referees meant to make, and they acted under a mistake. On the other hand, if, knowing what the law is, they mean not to be bound by it, but to decide what in equity and good conscience ought to be done between the parties, their award ought to be supported, although the whole proceedings should be apparent on the face of the award. And this, in our opinion, notwithstanding some contrariety, is the good sense to be extracted from the authorities."
2 Boston Water Power Co. v. Gray, 6 Met. 168, ante, p. 554; Richardson v. Nourse, 3 B. & Ald. 240; Watson on Arb. 232; 2 Story, Eq. Jur. § 1455, and cases cited; Kleine v. Catara, 2 Gall. 70; Young v. Walter, 9 Ves. 366. See Cushman v. Wooster, 45 N H. 410.
§ 1373. An award of arbitrators is void when, by the terms of the submission, they were to decide upon equitable as well as upon legal grounds, if the award shows that equitable considerations which would have led to a different result were, by mistake, wholly disregarded.2
§ 1374. An award will be set aside for a mistake of fact, apparent in the award itself, whenever the mistake is in an important and material particular, so that, had it been seasonably known, it would have varied the result.3 So, also, the same rule holds where the arbitrators are satisfied of their mistake, and state it, although it do not appear on the face of the award.4 But this rule would not apply to cases where the arbitrators have come to an erroneous conclusion from the evidence, though the party impeaching it offer to demonstrate its incorrectness. But the mistake must be of a fact inadvertently assumed, which can be shown to have been incorrectly assumed.5
1 Boston Water Power Co. v. Gray, 6 Met. 168, ante, p. 554.
2 Prescott v. Fellows, 41 N. H. 9 (1860).
3 2 Story, Eq. Jur. 1456, and cases cited; Boston Water Power Co. v. Gray, 6 Met. 168. In this case Mr. Ch. Justice Shaw says: "Another ground for setting aside the award is a mistake of fact, apparent upon the award itself; and this is held to invalidate the award, upon the principle stated in the preceding proposition, that the award does not conform to the judgment of the arbitrators, and the mistake, apparent in some material and important particular, shows that the result is not the true judgment of the arbitrators. The mistake, therefore, must be of such a nature, so affecting the principles upon which the award is based, that if it had been seasonably known and disclosed to the arbitrators, if the truth had been known and understood by them, they would probably have come to a different result." See, also, Underhill v. Van Cortlandt, 2 Johns. Ch. 339, for a full examination of the question by Mr. Chancellor Kent.