Astwood v. Wanamaker

Opinion by Orlady, J., The plaintiff brought suit in assumpsit and in due course of procedure secured an appearance, an affidavit of defense and a plea with notice of special matter, etc. The case was at issue and ready for trial by a jury. The matters involved were complicated through an extended business transaction and the defendant specified a serious misappropriation of funds by the plaintiff. A trial by jury would necessarily be expensive and unsatisfactory to each. It was of first importance that the accounts between the parties; the voluminous correspondence and laws of a foreign state should be fully and intelligently examined by a person of training and good judgment so that the parties wisely preferred a tribunal of their own selection and agreed in writing under their respective hands and seals “ to settle and forever dispose of all questions and controversies arising and existing between them,” by submitting them to Frank P. Prichai’d, Esq., to whom all questions in controversy should be referred and whose report and conclusion should be binding, final and conclusive, without the right of either party to appeal or take out a writ of error, and they pledged themselves to abide by and carry out his decision; and further that a judgment might be entered in any court of common pleas of Philadelphia in favor of the party in whose favor Mr. Prichard should find, for the amount of his finding, with costs of reference, and further they authorized any attorney of a court of record in Pennsylvania to appear for and enter judgment on said award, “any law, or rule of court to the contrary notwithstanding.” Pursuant to this agreement the parties adduced their proofs, before Mr. Prichard at hearings extending through twenty-one months of time and covering over 750 typewritten pages of testimony. After argument of counsel and a rehearing on exceptions filed by the plaintiff, the referee made an exhaustive written report of the proceedings before him and his descision thereon. The defendant filed a copy thereof to the number and term of the pending action, complied literally with the requirements of the agreement of arbitration and entered a judgment in exact accord with the decision of the referee. The plaintiff then presented his petition to the court for a rule to show cause why the judgment should not be stricken off, 595 etc., alleging irregularities in the referee’s report, and a lack of authority to enter a judgment in the pending action. This rule, was discharged'and the plaintiff sued out this appeal. The submission of their disputes to the referee was a voluntary arbitration at common law and not by virtue of any act of assembly. It was supported by a good consideration, and is as binding on the parties thereto as they declared it should be — ■ final and conclusive between them. It contemplated that the award of the referee should become permanent in a valid judgment to be entered in a court of record. It was a final adjudication of the controversies involved in the pending action, and was as properly filed thereto as if it had been the basis of a separate judgment. It ended that suit whether filed to it or not, and no possible harm has been done to the plaintiff by so doing. The vital fact' to the plaintiff was that the referee found that the defendant did not at that time owe him anything, which was equivalent to a finding for the defendant generally. The transactions were very intricate and involved the determination of many facts. The referee concluded the matter so far as it was possible for him to do, and clearly and concisely set out just what rights were adjusted by him. Certain matters were not in a condition for a final adjudication and these were distinctly stated. This was manifestly in the plaintiff’s interest and preserved his rights until the contingencies stated in the tenth finding should happen. The courts uniformly encourage such submissions and sustain them when honestly conducted. They facilitate the settlement of intricate business disputes; are less expensive than ordinary litigation and usually receive greater care and skill in their disposition than it is possible to secure in trial before a court and jury. There is no imputation of bad faith or wrongdoing on the part of the referee; nor is there any fatal defect or irregularity in his report and decison. The parties selected their own forum, each party agreed to take the risks of mistakes in fact and errors in the application of the law. We cannot change the decision of the referee who was their appointed judge of both law and fact. The rights of the plaintiff are fully preserved, and he can act upon the award by resorting to his remedy at law or in equity as the facts may determine when 596 he decides to move. However to conserve these rights we affirm the order of the court refusing to strike off the judgment without prejudice to the plaintiff to an accounting from the defendant under the fifth, sixth, seventh and tenth specifications as stated in the summing up by the referee.