Robinson-Rea Mfg. Co. v. Mellon

139 Pa. 257 | Pa. | 1891

OPINION,

Mr. Chief Justice Paxson :

This was a suit upon an award. The contract between the plaintiff company and the defendant stipulated that, in case of any dispute arising under said contract, the decision of the engineer should be final and conclusive. The engineer was the engineer of the defendant. The matters in dispute were submitted to J. H. McRoberts, the engineer referred to, who made an award in favor of the plaintiff for the amount of its claim. The defendant is not satisfied with the decision of his own engineer, and claims to have a re-trial before a jury. Various reasons are assigned for this in the affidavit of defence, the most material of which is that the award was not a completed award; that, after it was made, the arbitrator discovered that he had made some mistakes, and proposed to re-open said award for the purpose of correcting them.

The arbitrator in bis order for opening the award says: “ Believing it to be my duty to receive evidence of and inquire into any alleged mistakes which I may have made in the premises, I hereby re-open the case for such purpose, so far as within my power so to do; and I appoint the eighth day of January, 1890, at two o’clock p. m. at my office, 400 Grant St., Pittsburgh, as the time and place for said purpose, when and where evidence on said application will be received by sworn affidavits or depositions, and properly authenticated documents, or by oral testimony, but not otherwise.”

It will be observed that no errors in the award are specified ; it is not even averred that they exist. All that is stated is that, “ the day after the same (the award) was made, the said arbitrator discovered such facts as convinced him of the necessity of opening the same and examining the matter in dispute; ” not a word about mistakes. Nor does the arbitrator say he made any mistakes. What he says is that the defendant has alleged serious mistakes, and because of such allegation he believed it his duty to open the award and take testimony in regard thereto. The arbitrator would perhaps be entitled to correct a clerical or other error appearing upon the face of the award. This is not such case, however. The arbitrator, after he has made his award and delivered it to the successful party, proposes to re-open it, not to correct an admitted error, but to go into a general hearing and take testimony, upon the mere allegation of the defeated party that supposed errors exist. We know of no authority to sustain such a proceeding as this. If we were to do so, who can say when an award would become final, and litigation end ? If an award may be opened in this way, after two weeks have elapsed, why not after two months or two years ?

The affidavit does not aver any fraud or misbehavior on the part of the arbitrator. Indeed it would have been ungracious for the defendant to have made such charges against his own engineer. We find nothing in the affidavit which discloses a legal defence, and the judgment of the court below is

Affirmed.