Keiser v. Berks County

• Decision Date: 20 March 1916
• Docket Number: 394
• Parties: Keiser, Appellant, v. County of Berks
• Court: Pennsylvania Supreme Court

97 A. 1067

253 Pa. 167

Keiser, Appellant, v. County of Berks

No. 394

Supreme Court of Pennsylvania

March 20, 1916

[Copyrighted Material Omitted]

Argued February 28, 1916

Appeal, No. 394, Jan. T., 1915, by plaintiff, from judgment of C.P. Berks Co., Oct. T., 1915, No. 100, for defendant in case of David H. Keiser v. County of Berks. Affirmed.

Assumpsit on an alleged award of arbitrator.

The facts appear in the following opinion by WAGNER, J.:

This is a suit by the plaintiff against the defendant upon an alleged award in his favor for $13,950.62, together with interest from December 9, 1912, which plaintiff claims was made by five arbitrators. An award as defined in Green & Coates Streets Pass. Ry. Co. v. Moore & Rich, 64 Pa. 79, on p 91, is: "the judgment of a tribunal selected by the parties to determine matters actually in variance between them -- not merely to appraise and settle the price of property contracted for under the stipulation that this term of the contract was to be so ascertained."

It will be seen from this definition that in order that there may be an award, the matter or matters actually in variance between the parties must be determined. It is clear from the evidence in this case that the matter in variance between the plaintiff and the defendant was the amount of damages that had accrued to the plaintiff on account of the erection of the new Penn street bridge, and the thereby placing plaintiff's manufacturing plant below grade.

The plaintiff testified that his manufactory, wherein was carried on the manufacturing of shears, was located at the western approach of the bridge; that by reason of the erection of the new bridge this manufacturing plant was placed in a hole; that the pavement was raised almost as high as the building; that the production of the factory had been interfered with, and that by reason thereof he had a claim against the county for damages.

In order that there might be an award it was first necessary that an agreement be entered into by the parties, that is, the plaintiff in this case and the defendant, to submit this matter of variance, that is, the question of damages, to a tribunal for its determination. This agreement must be mutual and must show a clear intent to submit the matter in dispute to a tribunal and to be bound by its decision: McManus v. McCulloch, 6 Watts 357, 360; Wilson v. Getty, 57 Pa. 266, 269; Somerset Boro. v. Ott, 207 Pa. 539, 542, 543; Conneaut Lake Agricultural Assn. v. Pittsburgh Surety Co., 225 Pa. 592, 596; Reilly v. Rodef Sholem Cong., 243 Pa. 528, 531, and he who asserts this agreement has the burden upon him to establish by proof its existence: Hunn v. Penn. Inst. for the Instruction of the Blind, 221 Pa. 403, 411, and when this agreement, as in this case, is alleged to have been by parol, it must be established by the preponderance of the evidence: Gay v. Waltman, 89 Pa. 453, 457.

It is also clear from the evidence that the basis of this alleged award is a parol proposition claimed to have been made by plaintiff to the county commissioners, and the implied acceptance thereof, and that this constituted the agreement for submission. That this proposition is the basis of the plaintiff's claim of an award is thus made clear by his testimony where he stated he "made them this proposition"; where his claim was that the county commisioners said "that that was a fair proposition." Also where he states his "proposition was a flat one to them" (meaning the county commissioners), and also in other parts of his evidence, especially where he repeatedly speaks of his proposition that he made to the county commissioners, and the implied acceptance thereof by the appointment of two men and the request to plaintiff to appoint two men, as his agreement with them.

The question then naturally arises: What was the proposition that he made to the county commissioners and which he thus claims was accepted by them, and by the acceptation thereof constituted the agreement for the submission to the five men of the question in variance, that is, damages? We find the testimony of this plaintiff to be: "Then I proposed it in this way: That if they would pay the cost of raising the plant to the new level, the same as it was with the old level, why, then, I would waive all, any damages that might accrue through the movement of the machinery, and all damages to the building by interruption." This is a proposition that the county commissioners pay the cost of raising the plant to the new level. If that proposition was accepted then we have not an agreement to submit the matter of damages to five arbitrators, but merely an agreement between the plaintiff and the defendant, that the defendant pay to plaintiff the cost of raising his plant to the new level. When asked: "Did you make any proposition to them as to how this cost should be determined?" his answer was "They said that that was a fair proposition. Then I proposed that we arrive at it this way: I would appoint two men, and they would appoint two men, and then the four men would appoint the fifth man, stipulating that the men that would be appointed should be skilled in their line, each party to appoint one machinist and a carpenter or contractor, and the fifth man appointed by them was to be a civil engineer." If this proposition then in its entirety was accepted by the county commissioners, we have not what is claimed for by the plaintiff, an agreement to submit the matter in dispute to these five men, that is, the matter of damages, but an agreement by the county commissioners with this plaintiff that the county commissioners pay to the plaintiff the cost of raising the plant, and upon their doing so a waiver of damages, together with a further agreement that five men act as appraisers to determine this cost. This is not a submission of the damages to five men, but merely their appointment as appraisers to determine the cost, and, as is clearly pointed out in Green & Coates Street Pass. Ry. Co. v. Moore & Rich, supra, the proper action for the plaintiff would be a suit upon the agreement with the county commissioners, if the agreement be disputed, in which the finding of the appraisers would be the amount to be recovered in case the jury found that such an agreement was entered into. As again bearing upon the proposition, as aforesaid on cross-examination, he says: "My proposition to them was that the amount they would pay me would be the cost of raising it up to the level," and when still further questioned: "And it was to ascertain what it would cost that you agreed on these appraisers?" he answered, "That is what was to be." The question was repeated: "Q. And it was to ascertain what it would cost that you agreed on these appraisers?" he answered, "That is right." If this then was his proposition, you have not a proposition to submit the question in dispute, the damages, to five men,...