Price v. Goodenow , 232 Mass. 267 ( 1919 )

Rugg, C. J.

This is an action of contract. After the return of the writ into court, the parties entered into an agreement for arbitration, submitting the matters involved in this action to the determination of three arbitrators. The agreement was substantially in the form prescribed in R. L. c. 194, but it contained a provision to the effect that the attorneys for the parties should sign and enter in court an agreement for judgment on' the award as filed by the arbitrators. The arbitrators, in conformity to the terms of the agreement, heard the parties and made their award within one year and returned it to the clerk of the Superior Court. The defendant refused to abide by the award. The judge of the Superior Court refused to confirm the award or enter judgment in accordance therewith.

That course was right. This was an attempt to arbitrate under the statute a cause of action pending in court. This is not within the terms of the statute. It is provided by R. L. c. 194, § 1, that " Controversies which might be the subject of a personal action at law or of a suit in equity may be submitted to the decision of one or more arbitrators, as provided in this chapter.” These words plainly indicate that such an arbitration can relate to matters which might be, but have not yet been, made the subject of an action or suit. That is the clear import of the words used. There is no necessity for any such statute respecting the disposition of causes pending in court, because the court possesses ample power to refer upon agreement by the parties. This practice is too well established to require the citation of authorities. The reference here in question was not under rule of court and was not within the terms of the statute. There is nothing at variance with this conclusion in Bigelow v. Newell, 10 Pick. 348, and Sperry v. Ricker, 4 Allen, 17, where no question was raised as to the form, scope or sufficiency of the reference or arbitration.

In accordance with the terms of the report, the parties are to be left to their rights at law or in equity. Order refusing to confirm the award or enter judgment in accordance with its terms affirmed.

So ordered.