Boswell's Appeal

3 Pennyp. 305 | Pennsylvania Court of Common Pleas, Philadelphia County | 1883

Mr. Justice Paxson

delivered the opinion, of the Court, March 5, 1883:

A careful examination of this record fails to disclose any substantial error.

The most serious question presented is contained in the fifth assignment, which alleges the Court below erred ‘ ‘ in finding that, by the terms of the agreement of June 3, 1879, the said mortgage was due when the bill was filed.” The agreement expressly stipulates that the said mortgage “shall be taken and considered as now due and owing.” The object of the agreement was to provide for the settlement of certain matters in dispute between the parties, and as a means to this end it was agreed to submit ‘ ‘ to the award of George Tucker Bispham, Solomon M. Cooper, and E. C. Irwin, or a majority of them, mutually chosen by us, all questions in dispute, including all questions of law, equity, and fact, in regard to the said mortgage and tlie amount now equitably owing as aforesaid thereon, and we hereby respectively bind ourselves to submit to and be finally concluded by the award of said referees, or a majority of them,” etc. The failure of the referees to make an award by reason of the inability of any two of them to agree upon an amount brought this proceeding to a stand-still, and there being no provisions i'n the agreement itself for such a contingency, this bill was filed in the Court below to obtain the relief contemplated by the parties when they agreed upon a reference.

We have no doubt of the power of a Court of equity to grant relief in such a case. The failure of the reference was by no fault of either party, and the case does not come within that line of authorities which hold that where the parties stipulate upon a sufficient consideration that disputes, actual or prospective, shall be submitted to the arbitrament of a particular individual, they are bound by their contract and cannot seek redress elsewhere : Leebrick v. Lyter, 3 W. & S., 365 ; Monongahela Navigation Company v. Fenlon, 4 Id., 205 ; McGrheehen v. Duffield, 5 Barr, 499. In each of the cases cited, the plaintiff repudiated the tribunal agreed upon and sought to recover by an action at law.

Here the parties submitted in good faith to the tribunal of their own creation, and it was only upon a failure to obtain any result whatever that a court of equity was invoked to enforce the agreement of June 3, 1879. This was not a mere naked submission, which either party could revoke at pleasure at any time before award. It was founded upon a full find sufficient consideration, and is irrevocable. The consideration was, therefore: 1st. The giving by the appellees of their mortgage to the widow, Ann Thomas, to secure her annuity of $300, and the procuring from her a release of her interest of the mortgage in controversy. 2d. The giving by the appellees of their mortgage for $5,000 to the appellant to secure the performance of the award on their part, and 3d, the payment of $100 by Evan W. Thomas, one of the appellees, in advance, for the costs of the reference. It is true the mortgage to secure the annuity was executed several months in advance of the agreement of June 3, but it is averred in the bill, and not denied, that it was prepared in anticipation of such an agreement., ready to be delivered when the same should be consummated, and was not delivered until that time.

The learned master finds : “ That by the agreement of June 3, 1879, above mentioned, the mortgage in dispute must be considered to have become due and payable then, and that although the arbitrators were unable to come to any conclusion, yet as the plaintiff had, on the faith of that agreement, provided for the' life interest, which all concede Mrs. Ann Thomas had in that mortgage, and have secured her release of the same, and cannot now be restored to their former position, the finding of the Court must be substituted for the expected finding of .the arbitrators, and the agreement of the parties, to wit: “That the amount due on the mortgage be ascertained, paid, and the same satisfied, carried into effect.”

The parties having been fully heard before a tribunal specially adapted to the investigation and decision of such complicated questions, we are not disposed to disturb the decree unless it be shown that it is erroneous for other reasons. This has not been done.

The amount due upon the mortgage appears to have been correctly ascertained. The note of Evan W. Thomas for $2,000 was manifestly but collateral to the mortgage, and when this latter is paid, no good reason is apparent why the note in question should not be surrendered to the maker. The allowance of costs to the appellant was a matter within the sound discretion of the Court below, and it appears to have been properly exercised.

The decree is affirmed and the appeal dismissed at the costs of the appellant.