
    GANS VS. DREW.
    Parties may waive the right to an appeal in submitting a controversy to arbitrators.
    Where parties submitted a controversy to arbitrators ruder an agreement that their decision was to be without appeal an allegation i ; the' losing party embraced in the submission, is not sufficient to give a right to -an appeal.
    Error to the Common Pleas of Fayette County. No. 227, January Term, 1884
    There was an appeal by the plaintiff, from the judgment of Justice Andrew Plertzog. Richard Drew had dealings with the firm of A. W. and John EL Gans, who were in the lumber business, and other dealings with A. W. Gans, merchant. A. W. and J. EL Gans sued Drew before the Justice of the Peace, claiming $67 to be due them. The parties appeared and then concluded to leave all matters in dispute and variance, as far as partnership is concerned, in the lumber business, while A. W. Gans and J. EE. Gans were running the saw mill in partnership to the arbitrament of A. W. Scott and Andrew EEertzog, Esqs., and, if they disagree, they are each to choose a third man, whose decision ■ shall be final and conclusive, without writ of .certiorari or appeal. After hearing, the arbitrators found an award for the defendant for $165.78., and costs of suit. A. ~W. and J. EE. Gans then appealed from this judgment, and filed a transcript in the Common Pleas. Drew then took a rule to show cause why the appeal should not be stricken off, because they had' agreed to leave it to arbitrators, without the writ of certiorari or appeal. In answer to this rule, the plaintiffs filed an affidavit, that the ■award in this case is founded, in part, upon matters on account, ’which did not belong to, nor in any way concern the partnership claims between A. W-. and J. II. Gans, and Richard Drew, hut were altogether separate and apart from said partnership ■claims and business, and that the said award is, therefore void.
    Testimony was taken upon this rule. The Coprt directed the appeal to be stricken off. Gans then took a writ of error, com-' plaining of the action of the Court.
    
      Edward Campbell, Esq.
    
    argued that the right of'trial by jury •could only be waived by a clear agreement; Dawson vs. Condy, 7 S. & R. 366; Rowen vs. King, 25 Penna. 409, McClain vs. Boyer, 84 Penna. 417. If the arbitrators exceeded their •authority, it would render their decision void ; Young vs. Shook, 4 R. 303; Warner vs. Scott, 39 Penna. 274. By the terms of the submission, it was not a case of a disagreement, when a third man ivas to be called in, whose decision was to be final; and as a third man was not called in, the provision, as to there •bfeing no eertiorara or appeal, did not apply.
    
      Messrs. Boyle and Mestreyat, Esqs., contra;
    
    argued, that the 'Supreme Court will not retry the question of fact; Dawson vs. Condy, 7 S. & R. 367; Brown vs. School Directors, 18 Penna. 78; Bain vs. Punk, 61 Penna, 185; Murray vs. Henrie, 11 Penna. 412; Calhoun vs. Logan, 22 Penna. 46; Buckman vs. Davis, 28 Penna. 211. The award of the referees was final and conclusive ; and the parties have waived the right to appeal; Pritchard vs. Denton, 8 W. 371; McCahan vs. Reamy, 33 Penna. 535; Rogers vs. Playford, 12 Penna. 181; Andrews vs. Lee, 3 P. & W. 99; Rheem vs. Allison, 2 S. & R. 114; Foss vs. Bogan, 92 Penna. 296; Young vs. Shook, 4 R. 303.
   The Supreme Court affirmed the judgment of. the Common Pleas on the 18th February, 1884, in the following opinion:

Per Curiam.

That the parties to a suit may submit all matters at variance ' therein to referees and bind themselves by. an agreement that their decision shall be final and conclusive without the right of appeal is well settled; Rogers, et al. vs. Playford, 12 Pa. 181; McCahan vs. Reamy, 33 Pa. 535; Shisler vs. Keavy, 75 Pa. 79; Manhattan Life Ins. Co. vs. McLaughlin, 80 Pa. 53. The-evidence of the referees in this case shows that they kept within, the limits of the claims agreed to be submitted to them, and the-Court committed no error in striking off the appeal.

Judgment affirmed.  