Dinsmore v. Hanson , 48 N.H. 413 ( 1869 )

Bellows, J.

In Lary v. Goodnow, Coos county, July, 1868, it was held that a mere submission to arbitration will not be a discontinuance of a pending suit when by express agreement or necessary implication the cause is to be kept on foot until the arbitration is perfected by an award.

Whether a mere submission, without any provision as to the continuance of the cause, would operate as a discontinuance was left undecided, although a strong intimation was given that it would not.

' When it is considered that such submission is at all times, before an award, revocable by either party; that an award may be defeated by the death, or refusal to act, of the arbitrator ; and that an award.may, in many instances, be wholly inoperative and void for the reason that all the arbitrators do not assent to it; the injustice of holding the mere submission to be a discontinuance of the pending suit is quite manifest.

In New York, Maine and Wisconsin, and perhaps Tennessee, it has been held that a mere submission to arbitration will work a discontinuance of a pending suit, but we are not able to learn that this position finds any countenance in the doctrines of the common law.

A simple accord without satisfaction would be no bar to such suit; certainly not unless made a matter of record, so that it could be enforced ; and yet the accord assumes to fix the amount due by the agreement of parties ; whereas the submission provides only that the amount shall be fixed by third persons. In Com. Dig., Tit., Accord, Arbitrament, D. 2, it is laid down that arbitrament is no plea if the party lias no remedy upon the award ; as if the award be void. But an award is a good bar without showing performance, if the plaintiff have a remedy to enforce it; but if there be no remedy to enforce it, it is not a good bar; so is Crofts v. Harris, Carth. 188.

So it is laid down in Com. Big., Tit., Accord, Arbitrament D. 2, that when the time of performance is past, arbitrament is no bar without showing performance, though the plaintiff has a remedy by action upon the award. In 3 Ch. PI. 927, note w., it is said that in pleading an award it is necessary to aver performance, if there be no mutual remedies ; to which several cases are cited; so is Cald. on Arb. 420 ; Bac. Abr., Arbitrament, Gr. In Cald. on Arb. 45, it is said that a submission to arbitration is not an implied stay of proceedings in a suit already commenced ; citing Tidd. Pr. 819 ; Ld. Raym. 760.

In Connecticut the subject has been carefully considered in Nettleton v. Gridley, 21 Conn. 532; and it was decided that a mere submission to arbitration is not a discontinuance of a pending suit.

So in Hayes v. Blanchard, 4 Vermont Rep. 210, it was held that an agreement for a submission to arbitration did not take away the right to enter an appeal, unless there was an award before the time to enter it; or unless the time to make the award was fixed at a period beyond the time of such entry.

In Chapman v. Secomb & al., 36 Maine Rep. 102, it was held that when one of two arbitrators refused to act, the submission had become inoperative and the suit should proceed.

It is worthy of remark also that in the precedents we find no forms of pleas in bar founded upon a submission alone without an award,

In the case before us an invalid award was made because one of the arbitrators withheld his consent to it, and therefore if it had been pleaded in bar it would not have availed the defendant. This would be so clearly upon the authorities referred to in Com. Digest before cited; and also upon the authority of Chapman v. Secomb & al. cited above. So is the authority of Elliott v. Quimby, 13 N. H. 183, where the court say that if a submission has been made, but the arbitrators have refused to sit, the submission is not necessarily a discharge of the action unless it expressly appears to have been the intention of the parties.

We are of the opinion that the mere submission of the matter of a pending suit cannot be pleaded in bar of that suit; and of course if the arbitrator refuses to sit, or make an invalid award, or the submission be revoked by the defendant, the proceeding can constitute no defence.

The case then comes within the principle of Lary v. Goodnow before cited, and the court had power to strike off the entry of “ neither party” and bring forward the cases. The motion was addressed to the-discretion of the judge, and as he had the power, this court will not revise the exercise of that discretion.

Exceptions overruled.