
    Dennis Cavanagh vs. James Dooley.
    An action at law may be commenced and maintained upon a contract which provides that, “ in case of any disagreement with regard to the settlement, it shall be left out to disinterested persons, to be equally selected by the parties, and their decision shall be final,” if, after such a disagreement, arbitrators have been appointed who, after a hearing, have failed to make an award, and have refused to act further, and neither party has for several weeks thereafter taken any further steps to procure a settlement by arbitration.
    Contract upon an agreement in writing to pay the sum of $490 to the plaintiff for building a house according to certain specifications. The agreement contained the following clause: “ And in case of any disagreement with regard to settlement, it shall be left out to disinterested persons to be equally selected by the parties, and their decision shall be final.”
    At the trial in the superior court, before Russell, J., it appeared that, after a disagreement had arisen between the parties as to the settlement, each party selected an arbitrator, who after a hearing made no award, and the one selected by the plaintiff refused to act further in the matter. After several weeks, during which neither party did anything more in regard to a settlement 'by arbitration, the present action was brought; and, a trial by jury having been waived, the judge found for the plaintiff. The defendant alleged exceptions.
    
      W. P. Webster, for the defendant,
    cited Cobb v. New England Ins. Co. 6 Gray, 192, 197, 204, and cases there cited.
    
      S. H. Folsom, for the plaintiff, was not called upon.
   Dewey, J.

The facts relied upon in defence growing out of the stipulation of the parties to refer any matter of disagreement as to the performance of the contract between them to disinterested persons, to be selected by the parties, and the proceedings under such agreement in the selection of two arbitrators and the submission to them, do not constitute a legal defence to this action.

Independently of the objection that such agreement to refer any matter in dispute arising upon a contract does not oust the courts of law of jurisdiction, the case shows only an attempt to refer, and a failure to obtain any award by the two arbitrators.

In this view of the case, we see no ground, for exception to the ruling.

Exceptions overruled.  