Weaver v. Powel , 148 Pa. 372 ( 1892 )

Opinion by

Mr. Justice McCollum,

This case was tried in the court below on the theory that, although the award was not authorized by the submission, it could be enforced, if Keith’s refusal to join in it was attributable to the action or influence of Powel or his representatives, and the plaintiff was allowed to recover a verdict there upon a finding by the jury that Keith, while refusing to sign the award, said “ it was all right.” In his opinion, discharging the rule for a new trial, the learned judge reached the conclusion that his interpretation of the submssion in his instructions to the jury was erroneous, and that a majority of the arbitrators could make a valid award under it.

We think it is clear that a submission which requires that the arbitrators shall make an award under their hands and seals, is not satisfied by proof that they agreed upon an award which was reduced to writing, and they refused to sign. If the signature of one arbitrator, whose concurrence in the award is necessary to. its validity, can be dispensed with on such ground, the signatures of all can be, and we may have a parol award substituted for the written one demanded by the stipulations of the parties. It needs no argument or citation of authority to prove that a principle which admits of such results is unsound. The real question for our consideration in this case is, whether, under the submission, an award by two arbitrators is valid. The powers of the arbitrators are derived from the submission, and measured by it. If, in express terms, or by fair implication, it allows a majority to make the award, they may do so, but otherwise all must unite in making it. This is the rule of the text books, and of our own cases.

It is thus stated in Morse on Arbitration and Award, p. 162: “ Unless the statute or the submission, under which the arbitrators act and derive their authority, provides to a contrary effect, or unless a contrary intention of the parties can be clearly and unmistakably gathered from the submission and attendant facts, the rule is general and imperative that all the arbitrators must unite in the award in order to render it valid. A different rule is allowed to prevail in matters of public concern.” It is recognized and enforced in all the Pennsylvania cases to which it is applicable. In Tetter v. Rapesnyder, 1 Dallas, 293, there was a submission to three persons, and an award by two of them. The award was set aside on the ground that it was not authorized by the submission. In Bayne v. Gaylord, 3 Watts, 301, the submission was to two persons named, “ together with such third person as the two should selectthe two so named, without choosing a third arbitrator, made an award which was adjudged bad,' Chief Justice Gibson saying: “It is decisive against the award that it was made but by the two original arbitrators, and without the concurrence of a third to have been appointed by them.” In Welty v. Zentmyer, 4 Watts, 75, exceptions to an award by two, under a reference to three, were sustained, because the submission did not provide for it. Robinson v. Bickley, 30 Pa. 384, and Quay v. Westcott, 60 Pa. 163, are cited by the appellee as opposed to the rule we are considering, but they do not sustain his contention. In the first it was expressly agreed that an award by the majority of the arbitrators should be final; and in the second, the submission was to two arbitrators, who, if they disagreed, were empowered to choose a third. In our case each party named an arbitrator, the two persons named were to select a third, and the arbitrators thus chosen were to view the premises and make an award under their hands and seals. The disagreement of the two arbitrators named was not, as in Quay v. Westcott, supra, a condition precedent to the selection of the third, but it was their plain duty to make the appointment prior to any consideration of the question which was submitted, not to them alone, but to three persons chosen as aforesaid. The submission was the contract between the parties; it did not provide for a majority award, and there was nothing in it to warrant an implication that they intended to accept one in settlement of their controversy. The award was not authorized by the submission, and it is therefore invalid. It follows that it was error to allow a recovery upon it. The first, third, fourth, fifth and sixth specifications of error are sustained, and this makes it unnecessary to consider the second.

Judgment reversed.