80 Pa. 53 | Pa. | 1875
delivered the opinion of the court,
This record shows an agreement in writing, to refer a pending suit. The first section of the Act of 16th June 1836, Purd. Dig. 77, pl. 2, relating to “Voluntary Arbitrations,” makes it lawful “ for all persons desirous to end by arbitration any controversy, suit or quarrel, except such as respects the title of real estate, to agree in writing that their submission of the same to the award or umpirage of any person or persons shall be made a rule of any court of record of this Commonwealth having jurisdiction which the parties shall choose.” The object of this section was to furnish a mode by which all persons might terminate in one submission as many controversies as might exist between them, excluding only those respecting the title of real estate. The 3d section of the Act of 16th June 1836, Purd. Dig. 78, pl. 4, makes it “lawful for the parties to any suit to consent as aforesaid.” That is, in writing, as required by the first section “ to a rule of court for referring all matters of fact in controversy in such suit to referees as aforesaid, reserving all matters of law arising thereupon for the decision of the court, and the report of such referees, setting forth the facts found by them, shall have the same effect as a special verdict.” When the submission is under this section, of an action pending, it is not necessary to stipulate that it be made a rule of court. If a contrary intent does not appear, consent will be implied: Painter v. Kistler, 9 P. F. Smith 331; Reading Industrial Manufacturing Co. v. Graeff, 14 Id. 395.
The agreement in writing fixes and defines the powers given to the referees. The written agreement, filed of record in this case, contains no stipulation, either expressed or implied, that the referees should find the facts only, and the court declare the law thereon. It was expressly agreed that the case be referred to the. three referees named “without exception or appeal.”
It has been frequently held that the parties to a suit may, by such an agreement, put the award of referees heyond the reach of further inquiry or revision: Rogers et al. v. Playford, 2 Jones 181; McCahan v. Reamy, 9 Casey 535; Shisler v. Keavy, 25 P. F. Smith 79.
Under this agreement in writing, that their award should be' final, the referees were appointed. They reported that after being duly sworn, and after numerous meetings and adjournments, “ and having fully heard the evidence and allegations of the respective parties, do award in favor of the plaintiff the sum of seven thousand eight hundred and sixty-seven and 91-100th dollars.”
Having thus made their award, they went on to certify substan
On exceptions filed by the defendant to the sufficiency of the facts thus returned, the court set aside the «whole award and entered judgment in favor of the defendant.
All the assignments of error, except the first, which is not sustained, relate to this action of the court.
The question presented is, whether this certificate by the arbitrators of a parol agreement of the counsel of the parties, and the arbitrators’ finding of facts, justify the judgment of the court below.
We have shown the statute requires the agreement of submission to be in writing, and that it was in writing. Under that written agreement alone the arbitrators were appointed. By its express terms their decision was to be final without exception or appeal. They made an award full and complete in itself.
Can an averment by them of a radical change of the duties and powers delegated to them in writing, repudiated by the plaintiff, be permitted to contradict the written agreement? We think it cannot. The power of revision taken from the court by the written agreement of the parties cannot thus by the naked certificate of the arbitrators be restored to the court. It is in conflict with the rules of evidence, which will not permit a written instrument to be contradicted by parol, except for fraud, mistake or trust. Neither is alleged in this case. If, however, it be claimed that the parol agreement was subsequent, and superseded the written agreement, it is fully as objectionable. It is not claimed that it proves a common-law submission. The effect then would be to prove a parol submission of a pending suit, under a statute, when the statute authorizes a submission by agreement in writing only.
It follows, then, that the certificate of the arbitrators was with- , out authority; the facts therein recited were not legally before the court, and the court had no power of revision.
This view of the case makes it unnecessary to consider those alleged facts. They are not legally here. The learned judge, therefore, erred in setting aside the award and in entering judgment in favor of the defendant. The plaintiff was entitled to a judgment on the award. The assignments are sustained.
Judgment reversed. And now, judgment is entered in favor of the plaintiffs on the award.
