119 F. 488 (M.D.Pa. 1902), 1., Dickson Mfg. Co. v. American Locomotive Co.

Docket Nº:1.
Citation:119 F. 488
Case Date:December 19, 1902
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 488

119 F. 488 (M.D.Pa. 1902)




No. 1.

United States Circuit Court, M.D. Pennsylvania.

December 19, 1902

Page 489

Alfred Hand and William Hand, for plaintiff.

Woodward, Darling & Woodward, for defendant.

ACHESON, Circuit Judge.

Whether the two papers-- the primary agreement of June 1 and the bill of sale of June 20, 1901-- be read together or separately, the provision for arbitration embraces all disputes, of whatsoever character, that might thereafter arise between the parties touching their contract. The provision in paragraph numbered 7 of the agreement of June 1st (called the 'Option Contract ') is this:

'In case any difference or dispute shall arise between the parties hereto in respect to the interpretation or carrying out of this instrument or any of its provisions, including the cost of materials, supplies, product finished or in process, such dispute or differences shall be settled as follows: Each party hereto shall appoint one arbitrator or appraiser, and the two so chosen shall select a third. The written award or decision of a majority of such arbitrators shall be final and conclusive.'

The paper of June 20th (the bill of sale) provides as follows:

'And said parties further mutually agree for themselves, their heirs, successors, representatives, and assigns, respectively, that any difference or dispute arising in respect to the matters of this paragraph shall be adjusted and settled by arbitration or appraisal and award, as provided in the paragraph numbered 7 of the option contract aforesaid.'

If the operative effect of the latter provision is at all less than that of the former provision, it is only because the original agreement had been carried out in part. Certainly, as to everything yet remaining to be done on the one side or the other, the provision for arbitration expressed in the paper of June 20th is as comprehensive as is the seventh paragraph of the agreement of June 1st. No arbitrator or appraiser is named or designated in either of the papers. The arbitrators are to be chosen or selected thereafter, should any future difference or dispute arise. Plainly, the stipulation for arbitration relied on to defeat this action is an attempt to oust the jurisdiction of the courts to determine the rights of the parties.

Upon an examination of the authorities...

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