Williams v. Tracey & Co.

Mr. Justice Paxson delivered the opinion of the court, This record presents the single question whether the court below was right in refusing to set aside the award of arbitrators. The cause was referred by agreement of counsel in open court. The power of an attorney to refer his client’s cause is settled: Wilson v. Young, 9 Barr 101, If dissatisfied, the client can revoke the submission or ask the court to set aside the 'reference before it has been executed: Miller v. Criswell, 3 Barr 449 ; Bingham’s Trustees v. Guthrie, 7 Harris 418. It appears from the record that the rule to show cause why the agreement of reference should not be set aside and the submission stricken off was taken prior to the meeting of the arbitrators. It was, therefore, in time, and had the defendant below been in a position to ask the court to strike off the submission, such order would probably have been made. This, however, the court declined to do, and discharged the rule. We cannot say this was error. While the right of a party to revoke a submission, whether entered into by counsel or by himself, is conceded, the record shows the defendant obtained an advantage by the agreement of his counsel. The cause was called for trial in the court below in the absence of defendant and his witnesses, whereupon defendant’s counsel, to avoid a judgment against his client, agreed to refer the case and thus took it out of court. Having obtained the benefit of the delay, it does not lie in the mouth of the defendant to repudiate the act of his attorney and deny his authority. He received a consideration for the submission which made it irrevocable. Judgment affirmed. Gordon, J., dissented.