Brendlinger v. Yeagley , 1867 Pa. LEXIS 48 ( 1867 )

The opinion of the court was delivered, by

Agnew, J.

The effect of this award must be determined by the language and purpose of the submission. It is contended that the submission and award are good under the Act of 1836, on the ground that there was a pending action to which the submission was applicable, and that under the rulings of this court it is unnecessary it should be made a rule of court. The cases referred to are McAdams’ Ex’rs. v. Stilwell, 1 Harris 90, Ford v. Keen, Id. 179, and Buckman v. Davis, 4 Casey 211. In the first and last not only are the pending actions expressly referred to in the submissions, but the actions themselves are specifically submitted to the decision of the arbitrators, and the awards agreed to be filed and judgment entered thereupon by the prothonotary. In Ford v. Keen the agreement expressly stipulated that the reference should he under the 6th section of the Act of 1836. Therefore the court held in these cases that the intent to make the reference a rule of court was sufficiently implied. Such consent is to he presumed from the manifest intent to refer the action itself, and to make the award a part of the proceeding therein, and the means of prosecuting it to a conclusion. But when this intent does not appear, or where a contrary intent is manifest from the terms of the submission, the reverse has always been held. The following cases are instances: Okison v. Flickinger, 1 W. & S. 257; Gallup v. Reynolds, 8 Watts 424; Stokely v. Robinson, 10 Casey 315. In the last case the result of the decisions is summed up by our brother Thompson to the effect already stated, and he adds — “ further than this the courts have not gone.”

What then is the purport of the submission in this case ? It begins by reciting that a lawsuit is now pending between the parties and for trial at June Term 1864, the date being June 3d 1864. But what was the purpose of this recital? We are told in the next sentence. We do agree and covenant with each other (the paper says) that they, the said Brendlinger and Yeagley, will stop all further proceedings at law, and leave it to Lewis Eisher and J. R. Stull, who shall select a third man, and whatever decision they make shall be binding and final of all former transactions between the said parties. What is to be inferred from this ? Clearly not an intention to prosecute the action, for it was agreed to stop it though then on the trial list. It was not to refer the issue in that action only, for whatever the decision of the referees, it should be binding not only upon the matters of controversy therein, but of all former transactions between the parties. The nature of the pending case more clearly exhibits this. A judgment had been entered on a warrant of attorney, which had been opened, and an issue directed by the court to determine the amount due upon the judgment. It was therefore a special proceeding arising under the equity powers of the court to determine the specific extent of the defendant’s liability under the judgment. No such purpose is to be seen in this submission. On the contrary, the purpose was to stop this proceeding, and to institute another which should embrace all former transactions, and instead of being a part of the action, and filed in its prosecution, should be itself a finality. Richardson v. Cassily, 3 Watts 320, is a case more nearly resembling this than any one we have been referred to.

Whether the award in this case is good at common law, or how it shall be enforced, it is not our present purpose to decide. We think it is not available as an award in a pending action, and the judgment is therefore reversed, leaving the plaintiff to stand upon his award, and to take such proceedings upon it as may he authorized by law.

Judgment reversed.