| Pa. | Oct 30, 1883
delivered the opinion of the court, January 7th 1881.
The controlling question in this case is, whether the instrument of writing, dated July 12th 1881, signed by Delos E. Culver as an arbiter, and purporting to be an award, is sufficient to sustain the present action. The submission was prospective, but it was special, and was to the arbitrament of a person designated; it was founded on a valuable consideration, and was binding on the parties.
■ The matters in controversy were clearly within the jurisdiction of the arbiter, as, according to the submission, “ all and every question of difference, between them, growing out of the contract,” was to him referred, and his decision thereon was final, both parties to be bound thereby. The controversy grew directly out of the contract. Connor stopped the work, — whether at his own suggestion, or by inducement of Simpson is not here important, as that question was one for the arbiter. Simpson, alleging that by Connor’s default, be had incurred a greater expense than would have accrued under the contract, claimed compensation for the injury. If it were not for the obligation of the contract no such claim could be made, and when made, it must stand or fall, under the agreement of the parties; rights which accrue from non-performance are as much the outgrowth of the contract as those which accrue from performance.
Assuming, therefore, the jurisdiction of the arbiter, we oust every other jurisdiction over the same subject matter, until the arbiter has been discharged either by the rendition of an award according to the submission, or otherwise. The arbiter, accepting his office, made what purports to be an award : does it possess the qualities and requisites of one? We think it does not.
The reference was, of all and every question of difference, “between the parties growing ont of the contract,” questions of law, as well as questions of fact, the decision of the arbiter to be “final.” The submission, therefore, embraced the question of difference between the parties, as to the construction of the contract. Whether ten per cent, of the amount of each estimate, retained by Simpson, was to ho treated as stipulated damages, or as a penalty, merely, y?as.therefore for the arbiter’s decision. This question he has, however, not decided ; he indicates pretty
His award is in the alternative, and there is no proper tribunal, to which the peuding question submitted by the. arbiter can be referred, until his jurisdiction is determined; the parties intended to be obliged only by what the arbiter himself declared to be his award. The question of difference is undetermined ; the award is not final — it is uncertain and indefinite. What would constitute a sufficient tender of performance on the part of the defendant, or what breaches could be assigned in formal pleadings on the part of the plaintiff ? The breach is, itself, the cause of action, and unless that be assigned the defendant may demur.
According to the theory of the plaintiff below, the parties are necessarily driven to the courts, to ascertain what the award is, and a resort to the legal tribunals was precisely what the parties were seeking to avoid. An award at the common law, is in the nature of a judgment, and ought to be wholly decisive ; “ for if it doth not determine the matter it becomes the cause of a new controversy:” Bac. Abr. title Arb. & Aw’d 318. The ease of Sutton v. Horn, 7 S. & R. 228, was a reference under the Act of 1705. Chief Justice Tilghman, delivering the opinion of the court, says: “ This award is wanting in an essential quality ; it is not final, bnt instead of deciding the matter in dispute refers the decision to the court. This was contrary to the intent of the parties, who submitted the decision not to the court but to the referees. No award should be approved of by the court, but one which is in itself a perfect award. The plaintiffs counsel have endeavored to support this award, by comparing it to a special verdict; they say that judgment is to be entered on it/ as on a verdict, and, therefore, judgment may be entered as on a special verdict, which finds the facts and refers the law to the court. But this is not the true construction of the Act of Assembly,-by which it was not intended to alter the nature of an award; the award must be good per se in order to authorize the court to enter judgment on it.”
Although the award here spoken of, under the Act of 1705, had the effect of a verdict, and, when judgment was entered thereon, supported an execution, all that is said in reference to its essential requisites is applicable to an award at the common law ; for the judgment, if any be entered in this case, must be' upon the award ; it must, therefore, be certain and final, in order that it may of itself be sufficient to support an action to
"We are of opinion, therefore, that the court erred in entering judgment for want of a sufficient affidavit of defence, and the judgment is reversed.