Ralston v. Ihmsen

• Decision Date: 05 January 1903
• Docket Number: 123
• Citation: 204 Pa. 588,54 A. 365
• Parties: Ralston v. Ihmsen, Appellant
• Court: Pennsylvania Supreme Court

54 A. 365

204 Pa. 588

Ralston v. Ihmsen, Appellant

No. 123

Supreme Court of Pennsylvania

January 5, 1903

Submitted November 4, 1902.

Appeal, No. 123, Oct. T., 1902, by defendants, from decree of C.P. No. 1, Allegheny Co., March T., 1902, No. 291, on bill in equity in case of John Ralston et al. v. Herbert L. Ihmsen et al., Administrators of Thomas O. Ihmsen, Deceased. Affirmed.

Bill in equity for specific performance of an agreement in writing on the part of the defendants to sell the interest of their decedent in a business conducted by the plaintiffs and decedents as partners.

The material portion of the agreement was as follows:

"Now therefore, this agreement witnesseth, that we, Herbert L Ihmsen and D. O. Ihmsen, administrators of the estate of Thomas O. Ihmsen, deceased, John Ralston, William S Cunningham, B. J. Stenger and B. J. Stenger and Mary A Stenger, executors of the estate of Robert Cunningham, deceased, do hereby agree to submit to arbitrators or referees without exception or appeal, the question as to the value of the interest of Thomas O. Ihmsen, deceased, in the partnership association of Cunninghams & Company, Limited, and the copartnership of Cunninghams & Company and Cunninghams & Company, Limited, to include all interest which said Thomas O. Ihmsen's estate has or may have in said real estate, leasehold and all of the copartnership assets of said firm or partnership association, and for that purpose the said Herbert L. Ihmsen and D. O. Ihmsen, administrators as aforesaid, have selected D. C. Snyder, of the city of Pittsburg, as one of the arbitrators or referees, and the said John Ralston, William S. Cunningham, B. J. Stenger and B. J. Stenger and Mary A. Stenger, executors of the estate of Robert Cunningham, deceased, have selected C. Frederick Leng, of the city of Pittsburg, aforesaid, as the other arbitrator or referee; the said D. C. Snyder and C. Frederick Leng to proceed at once to determine the value of the interest of the said Thomas O. Ihmsen, deceased, in said real estate and all copartnership assets of Cunninghams & Company and Cunninghams & Company, Limited. But in case said D. C. Snyder and C. Frederick Leng cannot agree between themselves as to the value thereof, then they shall call in a third party to be mutually chosen by them to act with them as an arbitrator or referee in said matter. And it is mutually agreed and understood that the award in writing of the said arbitrators or referees, or any two of them, shall be final and conclusive as to the value of the interest of said Thomas O. Ihmsen, deceased, in the said firm of Cunninghams & Company, Cunninghams & Company, Limited, and said real estate and on any matter or thing touching or concerning the interest of said Thomas O. Ihmsen, deceased, therein; and each and every of said parties to this agreement do hereby waive any right of action, suit or suits or other remedy at law or otherwise touching the interest of said Thomas O. Ihmsen in said co-partnership or partnership association, so that the decision of said arbitrators or referees, or any two of them, shall be in the nature of an award in writing, final and conclusive as determining the value of the interest of said Thomas O. Ihmsen aforesaid.

"And immediately after the value of said interest is fixed and determined by said arbitrators, or any two of them, and on the payment of the amount thereof to them, the said Herbert L. Ihmsen and D. O. Ihmsen, administrators as aforesaid, covenant and agree that they will, at their own proper cost and charges, grant, convey and assure unto the other parties to this agreement, all of the interest of the said Thomas O. Ihmsen, deceased, in said co-partnership property, real estate, and partnership association in such a manner as will fully vest the title and ownership thereof in said other parties."

The referees named in the agreement made a valuation of all of the property, except the furnaces and ovens. They selected H. L. Dixon as a third referee and as one having expert knowledge of the value of furnaces and ovens. Dixon accepted the valuation of the other property made by the other two referees and appraised the furnaces and ovens himself. His valuation was accepted by Lane, but not by Snyder. Lane and Dixon signed the final appraisement.

The court entered a decree for the specific performance of the contract at the appraisement made by the referees.

Error assigned was the decree of the court.

The decree is affirmed at the cost of the appellants.

L. C. Barton, for appellants. -- The orphans' court had exclusive jurisdiction: Act of June 16, 1836, section 19, P.L. 784; Brightly's Equity Jurisdiction, section 915; Johnson's App., 114 Pa. 132; Miller v. Coffman, 16 W.N.C. 423; Lowry's App., 114 Pa. 219; Ainey's App., 11 W.N.C. 568; Hulse's Est., 12 Phila. 130; Mussleman's App., 65 Pa. 480; Bell's App., 71 Pa. 465; Bickley v. Biddle, 33 Pa. 276; Yocum v. Commercial Nat. Bank, 195 Pa. 411; Whiteside v. Whiteside, 20 Pa. 473; Grim's App., 105 Pa. 375.

All the arbitrators must hear the case and deliberate: Painter v. Kistler, 59 Pa. 331.

A submission whether by deed or otherwise, may be revoked before execution, though it be declared to be irrevocable: Power v. Power, 7 Watts, 205; Buckwalter v. Russell, 119 Pa. 495; Offerman v. Packer, 26 Legal Int. 205; Huston v. Clark, 9 W.N.C. 316; Wood v. Finn, 1 Clark, 396; McKenna v. Lyle, 155 Pa. 599; Shisler v. Keary, 75 Pa. 79.

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