Bingham's Trustees v. Guthrie

The opinion of the Court was delivered by Woodward, J. Putting aside many irrelevant matters which have been thrown upon this cause, I come at once to the only questions reviewable in a Court of error, and which are raised by the assignments of error. Three errors are assigned, of which the first and the third shall be considered together. The first is, that the Court erred in deciding the proceedings to be under the compulsory arbitration law. The third is, the Court erred in quashing the appeal. I have not brought these assignments into juxtaposition for the purpose of making them answer each other, though it is apparent one or the other must be bad — both cannot be true. If the Court erred in holding that the proceedings were under the compulsory arbitration law, then they did not err in quashing the appeal, for no other arbitration law gives an appeal. For the same reason, if they erred in quashing the appeal, they must have been right in holding it an arbitration under the compulsory arbitration law. But this is mere criticism. From an inspection of the record there can be no doubt this arbitration had its origin in those sections of the Act of 16th June, 1836, which relate to compulsory arbitration. An action of assumpsit was pending in the Common Pleas. The plaintiffs had filed their narr. when they entered the rule declaring their determination to refer the cause to arbitrators. The parties met in the prothonotary’s office, chose the arbitrators, and fixed the time and place of their meeting. All this was in strict accordance with the [421] compulsory arbitration law. The hearing having been adjourned to the 22d May, 1850, the record reads: “And now, to wit, May 22, 1850, cause continued by consent of parties till June 25,1850, and award of arbitrators to be final and conclusive {vide agreement filed May 29, 1850).” That agreement (to treat it as part of the record) is in these words: Bingham’s Trustees v. James W. Guthrie. In the Court of Common Pleas of Clarion county. No. 16, of May Term, 1850. Now depending before Joseph Cochran, James B. Lawson, and Isaac Jones. And now, May 22,1850, it is hereby agreed between the parties to the above cause as follows, viz.: — That all matters in variance between the parties of every nature and kind, without regard to the form of action or pleadings may be submitted by the parties, or either of them, to the arbitrators chosen in the cause, or to others legally appointed in their stead and tried by them, and that their award, or the award of a majority of them, shall be binding, final, and conclusive, between the parties. The parties waive the right of appeal, and of inquisition upon real estate. The cause to stand adjourned to 25th day of June next. " Geo. W. Lathy, James Campbell, Thomas Sutton, Att'ys for Pl'ffs. Att’y for def’nt. After this the parties met before the arbitrators and tried the cause, which resulted in an award for the defendant, from which the plaintiffs appealed. They also filed exceptions, which the Court dismissed, quashed the appeal, and, it is to be presumed, entered judgment on the award, though that does not distinctly appear of record. Did the agreement of 22d May, 1850, so change the nature of this proceeding as to make it error in the Court to receive and file the award as a judgment in the pending action ? The agreement is entitled of this suit, and recites that it is pending before arbitrators. It was filed of record in this suit. It had two objects in view. 1st. To enlarge the jurisdiction of the arbitrators. According to the statute and the rule entered under it, the submission was of “ all matters in variance between the parties in this cause.” This submission was limited by the rules of pleading and of evidence. By the agreement it was enlarged to embrace “all matters in variance between the parties of every nature and kind, without regard to the form of action or pleadings.” 2d. The other object of the agreement was to take away the right of appeal. By the statute either party might appeal from the award within twenty days after it was filed. By the agree [422] ment the parties waive this right of appeal as well as of inquisition, and make the award “binding, final, and conclusive.” Were these purposes incompatible with the compulsory arbitration law ? There is nothing in the Act of Assembly to make them so. Arbitrators cannot assume jurisdiction beyond the boundaries of the cause referred to them, and if they blunder into matters outside of the submission, their award is void as to such excess, but a submission under the statute enlarged by agreement of parties is opposed to nothing in the statute. True, the Acts of 1705 and 1806, if they are not repealed by the Act of 1836, and if they are, the first seven sections of the Act of 1836 provide for modes of arbitration by the concurrence of the parties litigant. Such also is arbitration at common law. In these cases the jurisdiction of the arbitrators is derived from the consent of the parties, whilst the peculiarity of the compulsory mode is that it originates in the will of one of the parties. He forces arbitration on his adversary without regard to his wishes, and hence it is called compulsory arbitration. But when the forum is fixed, its character is determined. It has been called into being by the agreement and concurrence of the parties, and all its proceedings are subject to the provisions of law which relate to such arbitration, or it has been established by one of the parties acting through the provisions of law that relate to compulsory arbitration. That is the latest point of time — the establishment of the tribunal — to which we can refer in determining its nature. Then we look at the proceedings which led to it, and determine whether it was a reference at common law under our old statutes, under the provisions of the Act of 1836 for voluntary arbitration, or under the provisions of the same act for compulsory arbitration. The jurisdiction has then attached, and however it may be enlarged or narrowed by the subsequent consent of the parties, the nature of the arbitration is not changed. Upon these principles it is easy to say the Court were right in deciding this to be a proceeding under the compulsory arbitration law. It could be nothing else, for concurrence was wholly wanting in its inception; and, down to the adjournment of 22d May, 1850, there was not a feature to distinguish it from any other compulsory arbitration. But if an arbitration under the compulsory law, we have the right of appeal, say the plaintiffs. You had the right of appeal when you began, and you had the right to an award on the matters in controversy in this suit, but you have surrendered them in consideration of your adversary’s surrender of the same rights. There can be no reason assigned for releasing parties from such an agreement that would not dissolve any other. And no agreement can be enforced if such an one may be violated. Similar stipulations have been enforced in numerous cases: Mussina v. Hertzog, [423] 5 Binney 387; Andrews v. Lee, 3 Penn. Rep. 99; Rogers v. Playford, 2 Jones 185. Arbitrators are a domestic tribunal often preferred by parties, and in many cases better calculated by their habits of procedure to do them justice than Courts and juries. The policy in Pennsylvania has been to encourage arbitration, and Courts have inclined to a liberal construction of the Acts of Assembly which relate to them. It is moreover to the public interest that an end be put to litigation, and that multiplicity of suits be discouraged. When, therefore, parties come before arbitrators chosen to decide a particular controversy in a pending action, see the men who are to be their judges and jurors, and voluntarily agree to submit all matters in controversy between them to be passed upon in that action, and especially, when they relieve the Court from all future embarrassment arising out of the pleadings, by mutually giving up the right of appeal, all interests both public and private, and all principles both of reason and law, concur in sanctioning their apt and terminating their discords. In applying the award to the action pending, the Court went not so far as was done with the sanction of this Court in Gallup v. Reynolds, 8 Watts 424. There, an award not made under any statute was applied to a judgment in the Common Pleas, and execution awarded on that judgment for the amount of the award. The Court proceeded in that case on the agreement of the parties, and, for the purpose of ending their strifes, held them to the law they had made for themselves. The Court below were in no error in doing likewise in the case before us. The second error assigned is, that “the Court erred in deciding that the powers of an attorney extended to the submission of other matters than those for which the action was brought.” If we were to confine our eyes to the record, it would appear that the submission was enlarged by the parties, and not by their attorneys. If we look at the agreement of 22d May, 1850, that speaks also of the parties, “it is hereby agreed between the parties in the above case,” &c. But grant the fair presumption to be, from the signature of the paper, that the attorneys and not the parties made the agreement, and let it be granted also, that it was beyond the scope of professional authority, what then ? A submission, whether by deed, parol, or rule of Court, like any other naked authority, is countermandable before execution of it, though expressed to be irrevocable: Vynior’s case, 8 Rep. 162; Power v. Power, 7 Watts 213. If a party is dissatisfied with the agreement of his attorney, he should apply to the Court in which the agreement is entered, to set it aside: Huston v. Mitchell, 14 Ser. & R. 307; Miller v. Creswell, 3 Barr 451; Babb v. Stromberg, 2 Harris 399. [424] Now, instead of revoking the submission or applying to the Court to set it aside, the plaintiffs went to trial under the enlarged submission, and took their chance for an award in their favor. When found to be against them they filed fourteen exceptions to it in Court, no one of which contained a suggestion of want of authority in their attorneys to make the submission, and now it appears on the record for the first time as an assignment of error. It cannot be entertained without disregarding the whole current of decisions: Herman v. Freeman, 8 Ser. & R. 9; Vankirk v. McKee, 9 Barr 100; Christman v. Mason, Id. 487; Rogers v. Playford, 2 Jones 181. But it cannot, with propriety, be conceded that the submission was beyond the authority of counsel. The authorities are not so, and therefore, even if the objection now taken for the first, were in time, it could not avail the plaintiffs. Besides the eases referred to in the opinion of the Court of Common Pleas, and several already cited in this opinion, I refer to Wilson v. Young, 9 Barr 101; Grier v. Bilger, 1 Harris 58. Having thus disposed of the questions raised on this record, I shall not discuss the exceptions to the award, overruled in the Court below, nor the powers of attorney mentioned in the argument, and much less the evidence on which the arbitrators proceeded. It is possible the award did injustice to the plaintiffs. I confess to a lurking suspicion to that effect, but, to adopt the language of Judge Bell in Rogers v. Playford, if injustice has been done, it is the result of a course of investigation and power of determination to which the plaintiffs voluntarily submitted themselves. Judgment affirmed.