| Pa. | May 25, 1885
delivered the opinion of the court May 25, 1885.
_ The learned judge of the court below rests his judgment of nonsuit upon the single ground that the suit was prematurely brought. It was an action of covenant upon a fire policy to recover for a loss sustained by the plaintiff. The policy contained tbe following stipulations: “In case differences shall arise touching any loss or damage, after proof thereof has be@n received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, . . . . . but (the arbitrators) shall not decide as to the validity of the contract, the liability of the company, or any other question, except as to the amount of such loss or damage......It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company for the recovery of any claim, by virtue of this policy, shall be sustainable in any court of law or chancery, until an award shall have been obtained, fixing the amount of such claim in the manner hereinbefore provided,” etc.
The language quoted is all that is essential. At the time the action was commenced below there had not been an award under the foregoing clause, nor had any steps been taken by either party to procure one. The court below held that under the policy an award was a condition precedent to the right to sue.
Few of the authorities cited have any bearing upon the case, for the reason that the condition in the policy is peculiar, and must be construed according to its terms. It will be observed, 1st, that the arbitrators are to be chosen at the request of either party in writing, and, 2d, that the condition
In Mentz v. Armenia Fire Insurance Co., 29 P. F. S., 478, there was a condition in the policy which absolutely required an arbitration to settle the loss in case of dispute, and that no action should be brought until after such award was made. It was held, however, not to be binding. It was said by Mr. 'Justice Shaeswood: “Such an agreement,'like any other agreement of reference, is revocable, though the party may subject himself to an action of damages for the revocation.. It is not in the power of the parties thus to oust the courts of their general jurisdiction, any more than they have to a personal covenant that they are not to be responsible for a breach of it: Furnivall v. Coombes, 5 Mann. & G., 736. The Supreme .Court of the United States have recognized the soundness of this general principle in Insurance Company v. Morse, 20 Wallace, 445, in which they held that an agreement by a foreign insurance company, in conformity with a State statute, that if sued in a State court they would not remove the suit into the Federal Court, was invalid.” Flaherty v. Insurance Co., 1 W. N. C., 352, was cited as sustaining the opposite view. The condition of the policy was not given in that case, and as reported it is of very little value in this connection, for the reason that we are left in considerable doubt as to what the case really was. In German-American Ins. Co. v. Steiger, 13 Insurance Law Journal, 546, the condition in the policy was 'substantially similar to the one in this case, and it was held “.that .such written request was a condition precedent to the appraisal and award, and that' there not having been a written request by either party for an appraisal, such appraisal and award were not necessary under the conditions in order to entitle the plaintiff to a recovery.”
' The learned court did not attach much weight to the second feasoii urged by the defendant as a ground of nonsuit, and it may be. dismissed with the remark that under the evidence the question raised was.entitled to be passe'd upon'by the jury;
The judgment-.is reversed, and a'-venire facias, ¡le novo awarded.