Clement v. Foster , 69 Me. 318 ( 1879 )

Walton, J.

The plaintiffs and one Blair submitted all claims existing between them to arbitration. The defendant guaranteed the payment of any award that should be made against Blair. This is an action upon the guarantee.

It appears that the arbitrator by mistake made an award against Blair larger by $360 than it should have been. The error occurred in computing the amount of certain surveys of lumber. The question is whether this error renders the award void, or whether it may be obviated by a remittal by the plaintiffs. We think it may be thus obviated. It is settled law in this state that, an award may be good in part and bad in part, and that when the good and the bad can be separated, the bad may be rejected and the good affirmed. We think a mathematical error, which can be readily ascertained and the amount made certain, comes within the operation of this rule. No reason is perceived why an award, which may be the result of a long and patient investigation of complicated accounts and conflicting claims, should be held to be void in toto, on account of a mere clerical error in footing up a column of figures, when the error can be at once ascertained by a re-casting, and corrected with mathematical precision. An error that cannot be thus eliminated may have that effect. But one that can be, falls within the operation of the rule that when the good and bad are separable, the bad may be rejected and the good affirmed. Day v. Hooper, 51 Maine, 178. Clement v. Durgin, 1 Maine, 300. Gordon v. Tucker, 6 Maine, 247. Banks v. Adams, 23 Maine, 259. Walker v. Merrill, 13 Maine, 173. Davis v. Cilley, 44 N. H. 448.

No other question of law is presented by the bill of exceptions in this case. All the other questions will be found, on examination, to be questions of fact; and the findings of the judge of the superior court upon these, is conclusive, and not reviewable in this court.

Exceptions overruled.

Appleton, O. J., Barrows, Virgin and Libbey, JJ., concurred.