To hold that one may sue first and obtain his cause of action afterwards is to set aside a general rule of long standing in this State. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122);Moyer v. Scott, 30 Mich. 345; and sustained by the weight of authority. 1 R.C.L. p. 340; 1 C. J. p. 1149. Arbitration not having been theretofore waived when plaintiff sued, he had no cause of action; his then only remedy was arbitration.Baumgarth v. Insurance Co., 152 Mich. 479. This defense was pleaded. Evidence that plaintiff tendered arbitration after commencement of suit and was refused and that thereby a cause of action accrued was inadmissible. Negotiation between the parties after the suit was brought, by which plaintiff was misled in no way, looking to a settlement of the case, was not a waiver of the pleaded defense. 26 C. J. p. 429; Goldstein v.Insurance Co., 106 Wn. 346 (180 P. 409); Carp v.Insurance Co., 104 Mo. App. 502 (79 S.W. 757); Gage v.Insurance Co., 34 Okla. 744 (127 P. 407). The law commends, it does not punish, efforts toward amicable settlements avoiding litigation. Richards v. Insurance Co., 83 Mich. 508 (21 Am. St. Rep. 611). Verdict should have been directed for defendant.
Judgment reversed, with costs to defendant. New trial granted.
McDONALD, SHARPE, STEERE, and FELLOWS, JJ., concurred with CLARK, C.J. *Page 111
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