Page:Federal Reporter, 1st Series, Volume 1.djvu/262

 254 FEDERAL REPORTER. �them, they would probably have corne to a different resuit. "The mistake must be of some fact, inadvertently assumed and believed, which can now be shown not to have been as so assumed." This case is followed by Rundel v. La Fleur, 6 Allen, 480; Palmer v. Clark, 106 Mass. 373; Carter v. Carter, 109 Mass. 306; Spoor v. Tyzzer, 115 Mass. 40; Davis y. Henry, 121 Mass. 150. These cases lay down, as I conceive, the true doctrine, that if the facts relied upon to invalidate the award were before the arbitra tor, oonsidered by him, and his judg- ment was based upon those facts, the award cannot be set aside by showing that he came to a wrong conclusion ; but if a fact existed to which his attention was not called, and upon ■which he was not asked to apply his judgment, or if he was 80 misled or deceived that he did not apply the rules which he intended to apply to the decision of the case, so that upon his own theory a mistake was made which caused the resuit to be something different from that which he would have reached by the exercise of his reason and judgment, the award ought to be vacated. �In Schenck v. Outtrell, 1 H.W. Cireen's Oh. 297, it is said that an award ought not to be set aside unless the arbitrator him- self would change it if the alleged mistake wore shown to him. �Applying these principles to the case under consideration it appears that in allowing complainant'a claim for extra work he fixed the price of the eut stone at $1.50 per foot; whereas, it is shown to him afterwards that the eommission- ers had contracted to pay $1.75 per foot. Here was a mis- take which was not ealled to his attention, and which would have made a difference of $2,492.50 in his award. It further appears that he overlooked a very considerable amount of extra work in and about the portico, and made a mistake of measurement, which, if the actual facts had been made known to him, would have increased the award by $2,323.78. Now, if these facts had been called to his attention, and he had oonsidered them and rejected the claim, there would be no ground for setting aside the award. But, as by his own statements they were overlooked, and he appears to be desir- ��� �