Gowen v. Pierson, 166 Pa. 258

166 Pa. 258 | Pa. | 1895

Opinion by

Mjr. Chief Justice Sterrett,

This action is on an award of arbitrators who were chosen by the parties to this suit in the concluding clause of a building contract executed by them on March 28, 1888. Said contract, and the award made in pursuance of the arbitration clause thereof, are fully recited in plaintiff’s statement of claim. After providing for the erection of the house therein mentioned, etc., “ according to and in all respects conforming with the plans and specifications prepared by Cope & Stewardson, architects,” the contract expressly provides that any variations thereof, “ made at the request of the party of the second part, will be executed by the party of the first part without additional charge, unless there is a written agreement entered into by the parties hereto upon the subject of such variations; ” and then concludes with the said arbitration clause, thus: “The above named architects, Cope & Stewardson, are hereby made arbitrators to determine all^questions arising under this contract, and no action shall be sustained by either party hereto for any alleged breach of the same until said arbitrators shall have certified that there is a cause of action, and if they shall certify.' the amount due, in respect of such breach, then no action shall be maintained except for the amount or sum so certified. And it is further agreed that in case of the death of either of the architects above named, the survivor of them shall have and exercise all power and functions hereby given to them jointly.”

Disputes having arisen between the parties as to certain matters pertaining to the building contract, the action of said arbitrators was duly invoked by the plaintiff. After notifying the defendant of the time and place of meeting, etc., they proceeded to hear and consider the matters in dispute, and thereupon found that there existed a valid cause of action on the part of the plaintiff against the defendant, owing to a breach of said contract by the latter, and further found and certified that there was due by him to plaintiff, in respect of said breach, the sum of $1,320.55. This action of the arbitrators is fully set forth in their award. It is also stated therein that the defendant, although duly notified of the time and place of meeting, adjourned meeting, etc., failed to appear before them in person or otherwise.

Plaintiff’s statement, in clear, precise and specific terms, presents a complete cause of action; and the only question is whether there is anything in defendant’s affidavit that amounts to a valid defence. If there is, we have failed to discover it. Defendant does not deny that there were matters in dispute between himself and plaintiff in respect of the building contract; nor does he deny that after being duly notified of the meetings of the arbitrators, he stood aloof and refused to participate therein. No reason for this is even suggested, unless it be in the averment that he had received from plaintiff all that he was entitled to claim, except “a balance of $292.77 still due and justly owing from the plaintiff to the defendant,” etc. This is no excuse for refusing to appear before the arbitrators and make such answer as he had to plaintiff’s complaint. Having thus ignored the special tribunal which he assisted in creating and investing with full and exclusive authority, “ to determine all questions arising under ” the contract between plaintiff and himself, he is not in a position to raise questions which he might have presented to the arbitrators, or to re-open, in this action on their award, questions upon which they were authorized to pass and did in fact determine in making up their award. According to the terms of the submission, the arbitrators were to determine all questions arising under the building contract; no action could be maintained by either party finally alleged breach of the contract until a cause of action was certified by the arbitrators, and if, as was done in this case, they certified “ the amount due in respect of such breach,” their no action could be maintained “except for the amount or sum so certified.”

The law applicable to such submissions and awards is well settled in a long line of cases, among which are: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Reynolds v. Caldwell, 51 Pa. 298; Hartupee v. Pittsburg, 97 Pa. 107; Hostetter v. Pittsburg, 107 Pa. 419; Commercial Assurance Co. v. Hocking, 115 Pa. 407, 414; Kennedy v. Poor, 151 Pa. 474.

In these, and other cases that might be cited, the law is definitively settled that where parties to an executory contract agree that all disputes, arising in relation thereto, shall be first submitted to the arbitrament of one or more named persons, they are bound by the terms of submission and cannot seek redress elsewhere until the person or persons so chosen have been discharged by having made an award, or otherwise; but where the agreement is to submit to one or more persons, to be afterwards agreed upon, the law is different. In Hartupee v. Pittsburg, supra, the plaintiff was nonsuited on the ground that his only remedy under the contract was on an award by the defendant’s mechanical engineer who was final arbiter of any dispute under the contract in question, and no such award had been made.

We are.satisfied that the affidavit of the defendant discloses no available defence and the rule for judgment should have been made absolute.

It is therefore ordered that the record be remitted to the court below, with directions to enter judgment against the defendant for the sum claimed by plaintiff, unless other legal or equitable cause be shown why said judgment should not be so entered'.