64 Pa. 79 | Pa. | 1870
The opinion of the court was delivered,
— The Act of Assembly of March 27th 1713, “An act for Limitation of Actions,” 1 Smith’s Laws 76, copying the words of the statute 21 Jac. 1, c. 16, enacts that “ all actions of debt grounded upon any lending or contract without specialty” shall be commenced and sued within six years next after the cause of such action or suit, and not after. It was held in Hodsden v. Harridge, 2 Saund. Rep. 64 b., that an action of debt on an award was not within the statute. The award indeed in that case was under seal, but as it was in pursuance of a parol submission, that circumstance was not regarded as material. By a later statute of 3 & 4 Wm. 4, c. 42, all actions of debt upon an award, where the submission is not by specialty, shall be sued within six years': Billings’s Law of Awards 213. This court, however, followed the English construction of the statute in Rank v. Hill, 2 W. & S. 56, though it would seem with much hesitation, and simply on the ground of authority; for it is said in the opinion: “ One would suppose the submission to be an engagement to abide by what the arbitrators should direct, and a promise to perform it.” "We have no statutory amendment of the law as they have in England. We must hold then that a debt created by award is not grounded on any contract or lending; consequently that an award upon even a parol submission is not within the act.
The question which we are now to decide is, whether the cause of action, as set forth in the 1st and 2d counts of the declaration, is a debt created by an award; or, on the other hand, is grounded on a contract without specialty. There is no material difference between the 1st and 2d counts in the statement of the cause of action. Indeed it is evident that the pleader by any variance in the mode of statement could not have avoided the question which arises. The counts are both properly drawn in strict accordance with that which the facts of the case only warranted.
A contract is an agreement upon consideration between two or more persons to do or not to do a particular thing. Here there undoubtedly was a contract. The plaintiffs were to exercise their' Option of selling their stock, which they did as the 1st count expressly and the 2d impliedly avers; otherwise it would have been bad. The defendants had of necessity a similar option of purchasing, which they did, as averred, by accepting the charter and commencing the road. Here is the aggregatio mentium — all the essential elements of a contract. If so, then the action must be held to be grounded on a contract without specialty. By specialty is meant an instrument under seal. That one of the teiyns of the contract — the price — was to be ascertained in a mode prescribed by a statute, does not alter the nature of the ease. It has been held, therefore, that the Act of Bimitations is a good plea in an action by a justice of the peace for his fees: Harris v. Christian, 10 Barr 233. There a statute fixed conclusively the price of the services rendered by the justice. The plaintiffs could never have succeeded on a bare count on the assessment, or what they term the award, without averring, as they have done, the exercise of the option by both parties — in other words, the contract. In an action on an award to go back and set out the cause of action, which was submitted to the arbi
— The Court of Common Pleas has no power, as a court of equity, to award an issue to be tried in another court. The obligation of the defendants to pay before using the streets was imperative: Sutcliff v. Isaacs, 1 Parsons’ R. 497; Cox v. Willetts, 9 Penna. L. Jour. 327. The defendants having used the streets before payment, a court of equity will afford relief: McGowin v. Remington, 2 Jones 63; and in a final decree will settle all the rights without aid at law: McCallum v. Water Co., 4 P. F. Smith 40. A majority of appraisers can make a binding appraisement: Quay v. Westcott, 10 Id. 163.
The present bill cannot be sustained as a bill in review of their prior bills, so that the previous decrees may be carried into full execution, because the decree of March 5th 1859 sustained a demurrer denying a decree for the payment of the money claimed, and the prayer of the present bill is for a decree for payment of that same money.
The Court of Common Pleas, in suggesting the entry of an amicable action, did so with a view of turning the parties over to a court of law for a purpose which it had already decided not to be within its equity jurisdiction, but did not intend to control the course of the proceedings at law.
The appellants, by delaying to proceed for eight years, and then by summons, though the decree was for an amicable action forthwith, and also by declaring directly upon the decree of March 5th 1859, and not “ solely on the said appraisement,” show that they did not intend to proceed under the decree of May 23d 1859, but on the contrary, proceeded in total disregard of it.
The appellants, having demurred to the appellees’ plea of the Statute of Limitations, and fully argued the same, cannot, after having taken the chance of a judgment thereon in their favor, be now permitted to allege that the decision of the issue to which they thus assented, has determined nothing.
Whether the final decision in this court was right or wrong cannot now he discussed. It undoubtedly determined finally all questions contested before it. The determination against the plaintiffs on the plea of the Statute of Limitations was on the ground that the writing in question was not an award but an appraisement ; casting the right of action upon the assumpsit, arising
The decree is therefore affirmed, and the costs ordered to be paid by the appellants.