39 N.Y. 377 | NY | 1868
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The referee having found that no question ever arose under this contract between the parties in relation to the value of the work, and there being evidence in the case to sustain such finding, we must receive the finding of the referee as conclusive upon this court as to this fact. The objection, therefore, that this action cannot be maintained because this matter had not been submitted to the architect, and his adjustment procured, is not well taken. There is, however, another answer to this objection. This agreement to submit this matter to the decision and adjustment of Mr. White constitutes no bar or defense to this action. In the first place, the agreement itself does not make this a condition precedent. Such stipulations are regarded as against the policy of the common law, as having a tendency to exclude the jurisdiction of the courts, provided by the government with ample means to entertain and decide all legal controversies. (Scott v. Avery, 4 House of Lords Cases, 811;Horton v. Sayer, 4 Hurlst. Norm. 642; Thompson v.Charnock,
The same is affirmed in the strongest terms by Story in his Treatise on Partnerships (§ 215, pp. 324 to 330), and also in his Equity Jurisdiction (vol. 1, p. 744, § 670). The case ofHaygart v. Morgan (1 Seld. 427) holds the same, and so doesSinclair v. Tallmadge (35 Barb. 607). The rule is the same whether the arbitrator be named and agreed upon or not, as is held in several adjudged cases. Where an agreement makes the procurement of the architect's certificate a condition precedent to any right of action, then the rule is as claimed by the defendant in this case, but such is not the agreement between these parties.
There is nothing in the objection that plaintiffs are not entitled to recover under their complaint as framed. The contract being fully performed and completed, and the money due, the plaintiffs, under the old rule of pleading, were entitled to recover upon the counts for work and labor, and are so under the present system. (Allen v. Patterson, 3 Seld. 476.) But the second count or cause of action stated in the complaint is quite a sufficient statement of the plaintiffs' cause of action. It is a concise statement of the facts constituting the plaintiffs' cause of action.
The judgment must be affirmed.
Judgment affirmed. *381