Connor v. Simpson

• Decision Date: 07 January 1884
• Citation: 104 Pa. 440
• Parties: Connor <I>versus</I> Simpson.
• Court: Pennsylvania Supreme Court

Page 440

104 Pa. 440

Connor versus Simpson.

Supreme Court of Pennsylvania.

October 30, 1883.

January 7, 1884.

October 30th 1883.

Before MERCUR, C. J., GORDON, PAXSON, STERRETT, GREEN and CLARK, JJ. TRUNKEY, J., absent

ERROR to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term 1883, No. 93 J. S. Ferguson, for the plaintiff in error.—The award was void for uncertainty, and will not support an action: Gonsales v. Deavens, 2 Yeates 539; Spalding v. Irish, 4 S. & R. 322; Sutton v. Horn, 7 S. & R. 228; Etnier v. Shope, 43 Pa. St. 110; Stanley v. Southwood, 45 Pa. St. 189 W. K. Jennings, for the defendant in error.—The objection to the form of the award is technical; "id certum est quod certum reddi potest." All that is necessary is for the court to strike out the first finding as surplusage, and let the other stand; besides, an award is not void because it is in the alternative and contingent: Thornton v. Carson, 7 Cranch 597.

Mr. Justice CLARK delivered the opinion of the court, January 7th 1884.

The controlling question in this case is, whether the instrument of writing, dated July 12th 1881, signed by Delos E. Culver as an arbiter, and purporting to be an award, is sufficient to sustain the present action. The submission was prospective, but it was special, and was to the arbitrament of a person designated; it was founded on a valuable consideration, and was binding on the parties.

The matters in controversy were clearly within the jurisdiction of the arbiter, as, according to the submission, "all and every question of difference, between them, growing out of the contract," was to him referred, and his decision thereon was final, both parties to be bound thereby. The controversy grew directly out of the contract. Connor stopped the work, — whether at his own suggestion, or by inducement of Simpson is not here important, as that question was one for the arbiter. Simpson, alleging that by Connor's default, he had incurred a greater expense than would have accrued under the contract, claimed compensation for the injury. If it were not for the obligation of the contract no such claim could be made, and when made, it must stand or fall, under the agreement of the parties; rights which accrue from non-performance are as much the outgrowth of the contract as those which accrue from performance.

Assuming, therefore, the jurisdiction of the arbiter, we oust every other jurisdiction over the same subject matter, until the arbiter has been discharged either by the rendition of an award according to the submission, or otherwise. The arbiter, accepting his office, made what purports to be an award: does it possess the qualities and requisites of one? We think it does not.

The reference was, of all and every question of difference, "between the parties growing out of the contract," questions of law, as well as questions of fact, the decision of the arbiter to be "final." The submission, therefore, embraced the question of difference between the parties, as to the construction of the contract. Whether ten per cent. of the amount of each estimate, retained by Simpson, was to be treated as stipulated damages, or as a penalty, merely, was therefore for the arbiter's decision. This question he has, however, not decided; he indicates pretty clearly that he has an opinion on the subject, and perhaps intimates...