Mitchell v. Dougherty

86 F. 859 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1897

BUTLER, District Judge

(after stating the facts as above). On the trial the folktwing point was presented by the defendant, and re-sawed:

“That -the plaintiff is hound by the provisions of the contract entered into between Dougherty and the owner, waiving suits at law, in reference to any dispute arising out of the contract, and he is only entitled to recover upon an award made by the architects. There being no evidence that such an award has been made, or no reference by plaintiff to architects, the verdict must be for the defendant.”

A verdict having been rendered for the plaintiff the point must now be disposed of.

It is well settled that in contracts such as the one involved, parties may bind themselves to submit to the judgment of an arbitrator as respects all questions arising out of their contractual relations. In the contract between* Dougherty and Archbishop Eyan it is provided that:

“It is mutually agreed and distinctly understood that the decision of the engineers and architects shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same, and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise by virtue of said covenants so that the decision of said engineers and architects shall in the nature of an award be final and conclusive upon the rights and claims of the said parties;”

—And the contract in suit is expressly made subject to this provision. The only question therefore is whether the dispute involved in this suit is covered by the provision. The plaintiff contends that it is not, as the parties could not have contemplated it; that it arises out of the defendant’s dismissal of the plaintiff from the work without cause, while the disputes contemplated were such only as might arise respecting the work and the manner of performing it; and furthermore as the dismissal which gave rise to the dispute occurred in consequence of the arbitrators’ mistake, and they are therefore subject to bias against the plaintiff, it could not have been contemplated that such a dispute should be submitted to their determination. There is much force in this contention; and if it had not been passed upon by the courts I should deem it worthy of serious consideration. A careful examination of Navigation Co. v. Fenlon, 4 Watts & S. 205, Fox v. Hempfield, 14 Leg. Int. 148, Connor v. Simpson, 104 Pa. St. 440, Howard v. Railroad Co., 69 Pa. St. 489, and Reynolds v. Caldwell, 51 Pa. St. 298, will show that substantially the same contention was made in these cases and overruled. The plaintiff in several of them was wrongfully dismissed from the work, in plain violation of the contract, and yet the dispute which thus arose was held to be one for the arbitrator, under a submission similar to that here involved. In Navigation Co. v. Fenlon the terms do'not expressly confíne the disputes to be submitted to those which may arise out of the contract, but by plain implication they clearly do; and the submission is so construed in all subsequent cases in which it is mentioned, except Lauman v. Young, 31 Pa. St. 306, where the court was seeking to distinguish the case before it by so narrow a construction of the submission there involved, as to exclude the question from the arbitrator’s jurisdiction. That case, in my judgment, is not in harmony with Navigation Co. v. Fenlon nor with the subsequent cases, above cited. It was decided however upon the court’s construction of the peculiar terms of the submission, which differ from those here involved. In Fox v. Hempfield and the other later cases above cited, the submission was identical, substantially, with that before us. There can be no doubt that the arbitrator may so disqualify himself by acts subsequent to his selection, as to relieve parties from the submission; and if the conduct of the architects which gave rise to the dispute involved in this suit, had been the result of malice or intentional wrong, instead of mistake, a different case would be presented. Under such circumstances he might be pecuniarily responsible to his employer for the damages, and in consequence be disqualified. It is not suggested that the engineers were guilty of such misconduct. Their refusal to determine the cost of alterations in advance was doubtless the result of their construction of the rights of the parties under the contract, and although wrong, (as pointed out in the courts charge to the jury) no more can be 'justly said than that their judgment was in fault; and as the plaintiff bound himself to submit to such judgment he cannot appeal to this mistake to oust their jurisdiction. This is distinctly ruled in one or more of the cases above cited.

The rule for judgment must therefore be made absolute and judgment be entered for the defendant accordingly.

As the court of appeals may possibly reach a different conclusion the rule for new trial should be disposed of. It is sufficient to say that it cannot be sustained. The questions of fact were fairly submitted to the jury. To disturb the verdict because the court may think it might justifiably have been rendered for $800 or $1,000 less would not be warranted. The testimony was conflicting and the jury was as capable of passing upon it as the court.