Sohns v. Sloteman

Winslow, J. We shall not review the evidence upon the disputed questions of fact. Examination of it shows that there was sufficient evidence to justify the findings' niade thereon by the referee. and confirmed by the cóurt', and that there is not a clear and satisfactory preponderance against such findings. It is objected that, by the agreement to do the work for one half the net profits, the plaintiff became a partner of defendants, and cannot maintain this action at law. We regard this as simply an arrangement by which the amount of plaintiff’s compensation is measured. La Flex v. Burss, 77 Wis. 538. The most serious question arises upon the effect Of the [116] agreement of arbitration. It is well settled in this state that a mere submission of a controversy to arbitration operates ipso facto as a discontinuance of a pending action thereon, because the parties have chosen another forum for the determination of their controversies. Muckey v. Pierce, 3 Wis. 307; Dolph v. Clemens, 4 Wis. 183 ; Bigelow v. Goss, 5 Wis. 421, and cases cited in note. The effect, however, of a provision in the agreement of submission ’ that the action shall not be discontinued has not been determined by this court, so far as we are aware. We see no good reason why such a provision should not be operative. The ground on which it is held that bare submission operates as a discontinuance is that it shows that the parties have agreed to a discontinuance because they have sought another tribunal. When the submission by its terms affirmatively shows that they have not agreed to a discontinuance, the reason for the rule is entirely lacking. Nor do we see any reason on grounds of public policy why a -stipulation that the action shall not be discontinued, but only stayed, should not be held valid. We come, then, to a consideration of the meaning of the stipulation in the agreement of submission. It seems very plain that the parties intended that the main action and the garnishee actions should remain in court, not only pending the arbitration and award, but until the award was paid. Plainly, the plaintiff did not propose to lose the benefit of his pending action and his garnishee proceedings while he was making an effort to arrange the matter and get his pay by means of the arbitration. Substantially the agreement is ' that the suits shall be stayed and shall be finally discontinued, provided an award is made and paid within a reasonable time; otherwise not. The award was not paid, either within the time limited by the award itself or within more than a year thereafter. We think the stay of proceedings agreed for in the submission must be held to have [117] expired long before this action was moved for trial, and the event upon which alone it was agreed that the action should be discontinued, namely, payment of the award, never having taken place, we think the case was properly moved to trial and judgment. The agreement contemplated discontinuance from one event only, and entirely rebuts the idea that it can result from any other event. No other points require attention. By the Court.— Judgment affirmed.