For reversal -- Justices Case, Heher, Wachenfeld, Burling and Ackerson. For affirmance -- Chief Justice Vanderbilt, and Justice Oliphant. The opinion of the court was delivered by Case, J.
[5 NJ Page 487] The appeal (R.S. 2:40-25) was to the Appellate Division from a money judgment in the amount of $6,451.42 entered in the Superior Court, Law Division, Hudson County, on an award by arbitrators, and is certified to us on our own motion. Plaintiff, Carhal Factors, Inc., brought an action at law under a complaint containing four counts of which the first and second were against Leon Salkind, Anne Salkind, Max Muehlfriedel, Hildegarde Muehlfriedel, Harold Baum and Marion Baum, individually, jointly, severally, or in the alternative, as co-partners, trading as Leading Embroidery Company, with its principal office at 5719 Hudson Boulevard, North Bergen, New Jersey, on a claim of $7,381.40 with interest, and the third and fourth were against Leading Handkerchief
Corporation, a corporation of the State of Rhode Island, on a claim of $604.32 with interest. Answers were filed by the several defendants. Motions were addressed to the answers, and certain defenses were struck. It appeared that plaintiff's assignor was a processing company and did certain processing or finishing for the defendants under a basic contract which contained a paragraph requiring the parties to arbitrate all differences arising therefrom. The court thereupon (R.S. 2:40-13, 14) stayed the action "until the further order of this court" and directed the plaintiff and the defendants to "arbitrate the dispute or disputes existing between them in accordance with the terms of the contract annexed to the complaint filed in this cause." The arbitration agreement was:
"Any and all differences arising out of this quotation or any contract arising therefrom or any dyeing or finishing instruction or order accepted under any quotations issued by this company shall be settled by arbitration. * * * Should arbitration be necessary we will select one arbitrator, you will select one arbitrator and those two will select the third arbitrator. Except as hereinafter stated their decision shall be final."
Plaintiff selected one arbitrator, defendants selected another and the arbitrators thus chosen selected a third. The arbitrators sat, heard the parties and received proofs. A stipulation entered into by counsel for the purpose of giving, on the appeal, a statement of some of the proceedings below, recites that "* * * the matters in difference between the parties were heard at some length before the arbitrators. At the beginning of the arbitration, the arbitrators were furnished with one of the pleadings in the previous law action, for the purpose of enabling them to have the correct names of the parties involved in the arbitration. * * * There was evidence before the arbitrators from which the arbitrators could have concluded that the corporate defendant was equitably owned by Leon Salkind and controlled by him. In presenting its counterclaim the defendants made no effort to segregate the damages due the partnership defendants from the damages
due the corporate defendant." The award treated the defendants as a single defendant and throughout referred to "the defendant" as though the parties defending were a single entity and stated the amount of the plaintiff's claim, with interest, as $8,110.79. It stated the sum total of "counterclaims" submitted by the "defendant" as $10,722.08, made up of seven liquidated items which the award considered seriatim, in some instances making its finding pro or con in precise dollars and cents and in other instances indicating its findings by specified yardages at a fixed value per yard, without computing the result. The award carries no total in figures but states the "feeling of the arbitrators that the preceding paragraphs set out in full detail the necessary decisions to settle this dispute promptly." The award was signed by only two of the three arbitrators. The third arbitrator refused to sign. An order was made confirming the award and pursuant to that order the plaintiff took judgment in the amount of $6,451.42 against all of the individual defendants named in the complaint in the law action, severally and as copartners trading as Leading Embroidery Company, choosing, however, to waive as against the corporate defendant and taking no judgment as to it.
Appellants first argue that the arbitrators exceeded and so imperfectly executed their powers that a mutual, final and definite award upon the subject ultimately submitted was not made. The computing of the total amount named in the judgment presents no insurmountable difficulty. It is a mere matter of calculation. The money findings were capable of being reduced to a certainty. But the identity and liability of the judgment debtors is a different matter. The parties to be affected and the manner in which they are to be affected by an award must be made certain. Ordinarily, an award is good as to matters within the submission, Rogers v. Tatum, 25 N.J.L. 281 (Sup. Ct. 1855); Hoffman v. Westlecraft, 85 N.J.L. 484 (Sup. Ct. 1914); but there was no article of submission to the arbitrators. We are told by plaintiff that the contract controls, and that by the contract all differences [5 NJ Page 490] were to be submitted. But that generalization, grounded solely in the basic contract, conveys no information as to what the differences were or in what capacities the parties were affected unless we assume that the differences were those set up in the pleadings and that the parties to the arbitration were the parties, with the varying responsibilities, named in the law suit. That the parties to the law suit were in fact the parties to the arbitration appears satisfactorily from the stipulation. The confirmation of the award was by an order in the law action above referred to, proceedings in which had been stayed pending the arbitration. We think that we should interpret the court's order as a rule upon the parties to arbitrate, in accordance with the terms of the agreement, the issues raised by the pleadings. (R.S. 2:40-14). This, too, leaves us in uncertainty whether the relative position of the parties or their precise liability for separate items was brought home to the arbitrators. The failure of the defendants to segregate their counterclaims does not, we think, relieve plaintiff from the duty to distinguish, in its proof of debts, between the individuals and the copartnership on the one hand, and the corporation on the other. The stipulation that there was proof from which the equitable ownership of the corporation by Salkind could be deduced does not clear the confusion. Nor does the stipulation that at the beginning of the arbitration "one of the pleadings" was furnished the arbitrators "for the purpose of enabling them to have the correct names of the parties." No one of the pleadings would give the information necessary to a clear view of the matter to be tried out; and the stated purpose of the incident was not that of presenting the matters comprehended by the submission. Proceeding on that assumption, there was a disputed claim of $7,381.40 against six individuals, severally and as partners, and a claim of $604.32 against a foreign corporation. Those, then, were the disputants whom the award classed as a single defendant and against whom it made an inseparable finding which was resolved into a judgment of $6,451.42. The award was a unit and must be understood to have been against all
the defendants. The arbitrators made the mistake, apparent upon the face of the award, of treating the defendants as a single defendant to be charged with the same debts. An award is impeachable if the arbitrators have mistaken a fact and the fact is apparent on the face of the award itself, Taylor v. Sayre & Peterson, 24 N.J.L. 647 (Sup. Ct. 1855); Held v. Comfort Bus Line, Inc., 136 N.J.L. 640 (Sup. Ct. 1948), and if the award is, in that respect, to be regarded as an excess of power rather than as a mistake it is likewise impeachable, Leslie v. Leslie, 50 N.J. Eq. 103, 108 (Ch. 1892). The award made no findings by which the debt of the corporation was distinguished or distinguishable from the debt of the individuals and the partnership. The fault is not remedied by the act of the plaintiff in omitting the corporation from the judgment. The omission does not establish that a debt properly owing by the corporation, a separate legal entity, is not wrongfully included in the judgment entered against the remaining defendants. An award which does not clearly fix the identity of a party defendant and the capacity in which he is charged is void for uncertainty. Hoffman v. Hoffman, 26 N.J.L. 175 (Sup. Ct. 1857); Lyle v. Rodgers, 5 Wheat. 394, 5 Law Ed. 117 (U.S. 1820). The award was indefinite within the application of R.S. 2:40-19(d).
The award was faulty in another respect which, since the case must go back for further proceedings, we stress for the guidance of court and counsel. Very early in our decisions it was recorded that courts accord great liberality in favor of the validity of arbitration proceedings but that where plain mistake of law or fact appears courts of justice are bound to set them aside, Moore v. Ewing, 1 N.J.L. 144 (Sup. Ct. 1792), a limitation that was somewhat modified by our Court of Errors and Appeals in Bell v. Price, 22 N.J.L. 578 (1849), Richardson v. Lanning, 26 N.J.L. 130 (Sup. Ct. 1856); cf. Runyon v. Hodges, 46 N.J.L. 359 (Sup. Ct. 1884); Booye v. Muth, 69 N.J.L. 266 (E. & A. 1903). We believe that the law, under the circumstances of the case, requires the award to be signed by all three arbitrators; and
that consequently a fundamental defect, which should be corrected, is apparent on the face of the proceedings. It is the general rule under the common law that when a matter of purely private concern is submitted to the determination of the arbitrators, there must be unanimity of conclusion unless otherwise indicated by the terms of the submission. City of Omaha v. Omaha Water Co., 218 U.S. 180, 54 Law. Ed. 991 (1910); Nettleton v. Gridley, 21 Conn. 531, 535 (Conn. Sup. Ct. of Errors 1852); Bannister v. Read, 6 Ill. 92 (Ill. Sup. Ct. 1844); Byard v. Harkrider, 9 N.E. 294 (Ind. Sup. Ct. 1886); Hubbard v. Great Falls Mfg. Co., 12 A. 878 (Sup. Jud. Ct. of Maine 1888); Washburn v. White, 84 N.E. 106 (Sup. Jud. Ct. of Mass. 1908); Jackson v. Gager, 5 Cow. 383 (Sup. Ct. of the State of N.Y. 1826); Ex parte Rogers, 7 Cow. 526, 529 (Sup. Ct. ...