21 F. Cas. 728 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1878
Perhaps the only remedy which the defendants could have would be to ask, in a court of equity, that execution should be restrained until a reasonable time had elapsed in order to enable the arbitrators to make an award.
Mr. White in reply.
The contract is not to be governed by the Pennsylvania decision, which is opposed to the authorities. This court will not be bound by state decisions on questions of general law. Southern & A. Tel. Co. v. N. O., M. & T. R. Co. [Case No. 13,185]; Sanford v. Portsmouth [Id. 12,315], This case differs from Mentz v. Armenia Fire Ins. Co., supra, inasmuch as here the parties entered into the arbitration, expressly excluding, by the terms of the agreement, all questions except that of amount. The written agreement of reference is equivalent to a waiver of requirement for the written reauest.
CADWALADEB, District Judge, having-asked the plaintiff's counsel whether they would object to an allowance of a moderate amount of time, to enable the arbitrators, if, possible, to make an award, with the understanding that the verdict should be reduced to their award, if below the verdict; otherwise, to stand as found by the jury, — counsel answered that such an agreement would be perfectly satisfactory.
CADWALADEB, District Judge. We have no hesitation in saying that the conditions, to refer and that no suit shall be brought until award made, do not suspend the plaintiff’s right of action. This has been decided in the case of Mentz v. Armenia Fire Ins. Co., supra. The plaintiff, on the evidence, is therefore entitled to judgment, the covenant being a collateral one, and not a condition precedent. We think, however, that this court may regard the matter from an equitable light, and that it would be proper, as both parties have submitted to the arbitration, that if an award can be made within a reasonable time they should be bound by it. As the plaintiff's counsel have stated that they have no objection to-this course, we suspend the entry of judgment in the plaintiff's favor for 60 days, within which time, if an award is made, its amount is to take the place of the verdict; otherwise, the jury’s assessment is to stand. The motions for a new trial, and to enter judgment in the defendant's favor on the point reserved, are refused
