
    Hamilton v. Hart.
    A court of equity has no jurisdiction to enjoin an action at law brought for the purpose of enforcing the final award of an arbitrator, where there is a subsequent award of the same arbitrator; nor will a court of equity decree which award is binding; nor enjoin other suits about the same subject matter.
    Jan. 8, 1889.
    Appeal, No. 149, Jan. T. 1889, from a decree of C. P. Montgomery Co., sustaining a demurrer to a bill in equity wherein ¥m. C. Hamilton & Son were plaintiffs and John D. Hart was defendant. Williams and McCollum, JJ., absent.
    The bill in equity was as follows:
    “The said William C. Hamilton & Son bring this bill against said John D. Hart, the defendant, and complain as follows:
    “1. We are, and have for many years, been residents of the county and city of Philadelphia, and also had an office and place of business in said city. We have also owned and operated a factory for the manufacture of paper, situate on the Schuylkill, in Montgomery county, known as Riverside Mills.
    “ 2. In the year 1882, desiring to fill our orders and provide for an increasing business, we found it necessary greatly to enlarge our said works, and, on June 8,1882, entered into a written contract under seal, with said defendant, a builder, to perform the work, which consisted of the addition to the then existing buildings, and the new buildings described in the contract and specifications.
    “ 3. The said contract contained a stipulation that if the parties should not be able to agree as to the cost of alterations which might be required, whether as an addition to, or deduction from the contract price, said cost should be determined by A. Penrose Benner, the architect named in the contract, whose decisions on all points affecting the agreement, and alterations thereof, should be final and conclusive on both parties; and the said Hart thereby expressly covenanted and agreed that he would conform to, and comply with, and carry out all such decisions of said architect, and further agreed to give bond in the sum of ten thousand dollars, with a surety, for the prompt performance of his contract, and furnish a release of liens for all work done and material furnished.
    “ 4. The said defendant never gave the said bond, delayed the prosecution of the said work to an unreasonable extent, to our great and irreparable damage, placed upon it a very insufficient force, and did not conform to, nor comply with, the directions and decisions of the said architect, from time to time repeatedly given to him, requiring a more speedy and diligent prosecution by complainant of his contract, which the said architect decided ought to have been finished in 90 days. He thereby prevented us from having the full use of said plant, and entailed upon us a loss of many thousand dollars, more than the whole contract price, part of which, being loss of profits, was not recoverable at law, but was, none the less, an actual and serious loss to us.
    “ 5. The said Hart abandoned the said work about the 28th of December, 1882, nearly three months after the same should, with the use of ordinary diligence, have been fully completed. He left it in an unfinished state, and some part of it so badly constructed that it became necessary for us to have it taken down and re-constructed, for which we were obliged to pay, and did pay $1020.
    “ 6. On the 16th day of Feb., 1883, we met the said architect, A. Penrose Benner, and the said defendant, for the purpose of making a settlement between us. The said Benner, then and there stated an account showing $6,322.56 due to said Hart, upon the contract, after deducting $6,000 which we had paid on account, and allowing a credit of $300, which he estimated would be necessary to complete the work left undone by said Hart. The said arbitrator, however, wrote upon the said statement that he would not accept the release of liens there produced by said Hart, and verbally •directed that said Hart should also give a bond to secure us from loss by reason of any liens which might be filed against the property by himself or by others through his failure to furnish us a full and complete release of liens as called for by his contract, and against probable loss by reason of bad workmanship in the outside flank wall of the three story building, being one of the buildings erected by said Hart under the said contract. The said Hart never produced nor tendered any other release of liens than the one which the architect rejected, and which the said Hart carried away with him.
    “ 7. We made claim at the said meeting for an allowance for the unjustifiable delay of the defendant in the execution of the said •contract, and for the irreparable damages we had sustained by reason thereof, and by bad and defective work, and also for an injury done to a new eight hundred horse steam engine, which it cost us $600 to repair. The said arbitrator then and there stated to the parties, that although he was satisfied that we were entitled to considerable damages for the delay, and other matters claimed by us, he was of the opinion that he had no jurisdiction as to them, and we would have to bring suit at law for redress. He therefore did not pass upon our said claims.
    
      “ 8. The said Hart then and there declared that he would not accept, nor abide by the said finding, but would sue us at law. We, believing that the action of the arbitrator in refusing to act upon our said claims, and referring us to the courts, was not in conformity with the submission, and that his said finding was not a final nor a legal award, protested against it as unjust to us. But, being extremely anxious to avoid litigation, and willing to lose, rather than be involved in it, and desirous to have nothing further to do with the defendant, whose ill treatment of us, and his disregard of his duties under the said contract, had been so flagrant, we offered at once to pay him the said sum of $6,322.86, and one hundred dollars in addition, as a compromise and full settlement of all matters between us under said contract. The said Hart refused the said offer, and left the room, and on March 2, then next, brought an action of assumpsit against us, on the said contract, in the court of common pleas of Montgomery county, claiming, by his bill of particulars, furnished on call, $1,2983.45, and, on Feb. 23, 1883, filed in said court, against our said real estate, a mechanic’s lien for the sum of $7,087.55, which he still maintains of record. The said suit was referred, by said Hart, under the compulsory arbitration Acts, to arbitrators. There was an appeal from this award, the cause was, after several continuances, tried at great length in court, occupying several days, a judgment entered against us, which, upon writ of error taken by us, was, on Oct. 5, 1885, reversed by the supreme court.
    “9. On May 17, 1886, the said Hart brought an action of debt against us in the said court of common pleas of Montgomery county, upon the said contract and finding of A. Penrose Benner, of Feb. 16, 1883, then claiming that the same finding, which he had before repudiated, was a final award between the parties; and, on the same day, brought an action of covenant against us, on the said contract, in the same court, both which actions are still pending in said court, and said defendant threatens and intends to prosecute said actions to final judgment, to our great and irreparable injury, in utter violation of his said contract, and contrary to justice and equity.
    “ 10. On Sept. 20, 1887, wishing and hoping to end all. controversy with the said defendant, we called upon the said A. Penrose Benner to fix a time to hear us and the said Hart, and the proofs and allegations of both parties, and to make a final award between us as to all matters arising under the said contract. The said arbitrator, accordingly notified us, and the said Hart, to meet him at the arbitration room in the Court House at Norristown, on Oct. 26, 1887, at 10 o’clock a. m., to hear the proofs and allegations, and perform the duties imposed upon him by the said'contract.
    “11. "We attended at the time fixed, with our witnesses and other proofs, upon the claims for delay, and injury to our engine, and bad and defective work, which the said arbitrator had, at the meeting in Feb. 16, 1883, declined to decide, under the mistaken supposition that it was not in his power to do so, but as to which he stated that he had become convinced that he had been in error. The said Hart appeared before him, by his counsel, and protested against his power to act, or to make an award, and left the room. "We then produced our testimony, and, on Nov. 26, 1887, the said arbitrator made a final award, that the amount then due from us to the said Hart was the sum of $5,821.56, to be paid him, by us, when he should remove his lien against us, and satisfy any others that may have been entered by any one else on account of said contract.
    “ 12. The said Hart was duly notified of said award, and, on Dec. 6, 1887, we tendered to him the said award, and at the same time tendered him the said sum of $5,821.56, in legal tender money of the United States. He refused to receive either the award or the money, and stated that he would continue to pursue us in the courts.
    “ 13. The proceedings of the said Hart are contrary to his contract, have imposed upon us an intolerable burden in counsel fees and other expenses of litigation, which he has unjustly forced upon us, has annoyed and greatly injured us by dragging us repeatedly from our homes and business, into another county, and subjecting us to insults and false imputations upon our integrity, although we have in every way tried to carry out our said contract, and offered to do much more for peace and to avoid litigation.
    
      “14. We have repeatedly offered said Hart, through his counsel, to compromise the said disputes, and to pay him sums much larger than in justice to ourselves we ought, all of which he has refused and continued to press us in the court. We have always been ready, and now offer to pay him, on demand, the amount of the said final award of the arbitrator, to wit: the said sum of $5,821.56, upon the compliance, by the said Hart, with the terms of the said award. We submit, however, that we have been subjected to very heavy expenses in counsel fees and other necessary payments, in time spent in attending upon various suits and hearings in said illegal and unjust suits to an amount not less than three thousand dollars, and that the said Hart is justly indebted to us, and ought to pay us that, or such other sum as this court may find we are in equity entitled to have for our damages wrongfully sustained by his said proceedings.”
    The bill prayed:
    “1. That the said John D. Hart, be restrained by the final injunction of this court from further prosecution against us of his said proceedings at law or any future proceedings at law for matters arising under said contract, and that he be decreed to withdraw the said suits now pending in the court of common pleas of Montgomery county, and the said mechanic’s lien filed by him in said court.
    “ 2. That the said award by the said A. Penrose Benner, Nov. 26, 1887, awarding to the said Hart the sum of $5,821.56, be decreed to be the final and binding award between the said parties of all matters arising under the said contract of June 8, 1882.
    “ 3. That the said John I). Hart be decreed to be indebted to us, the sum of $3000, for the counsel fees and expenses we have been compelled by him to pay, by reason of, and in the defence of, his said proceedings at law, and for the damages resulting to us by reason thereof, the said sum to be deducted from the amount of said award.
    “4. That, upon payment by us to said Hart, of the sum of $2,821.56, or of the lawful tender of said sum to him, we be decreed to be discharged from all claims, as well at law, as in equity, in any way arising under the said contract of June 8, 1882. 5. Other relief.”
    The defendants demurred to the bill, filing the following reasons:
    “ 1. The bill is not in conformity with Equity Bule xv, in this, that it is not in the following form, to-wit: ‘Your orators complain and say.’ 2. The prayer is not for a decree as provided for in rule xvi. 3. The facts alleged in the bill show that the plaintiffs have no right to a bill in equity, as they have a complete and adequate remedy at law. 4. The allegations contained in paragraph 9 show the pendency of a suit at law, to which the plaintiffs in this bill have taken defence; said suit has already been tried before a jury, and verdict rendered in favor of the defendant in this suit. 5. The court sitting in equity has no jurisdiction over the subject matter of the bill. 6. Paragraphs 7 and 8 show a final award for the defendant for $6,322.86, and allege an offer to pay, on the part of the present plaintiff, and therefore the said award was binding on the parties, and a suit at law was the only mode of enforcing the same. 7. The allegations in paragraph 10 set up another award, which it was not in the power of the architect to make, as his function ceased when his former award was made. 8. The prayers for relief, as set forth in the first paragraph of plaintiffs’ prayer, is illegal, and this court has no power to énter the same. 9. Paragraph 2 of the prayer cannot be enforced, as the bill shows a final award on Peb. 16, 1883. 10. Paragraph 3 of the prayer is illegal, as counsel fees are in no such case as the plaintiffs have set forth recoverable either at law or equity. 11. Paragraph 4 of the plaintiffs’ prayer cannot be made, as the court has no jurisdiction to make the same, the same being illegal and not enforceable either at law or equity.”
    The court sustained the demurrer, in the following opinion, by Swartz, P. J.:
    “ The defendant entered into a contract with complainants for the construction of certain new buildings and additions to existing buildings. As the 'work progressed, it was found that certain alterations were required. The contract provided the method for determining the cost of these alterations. The defendant brought suit in assumpsit for the money due him. The supreme court reversed the judgment recovered by the defendant in the lower court upon the ground that the action should have been in debt or covenant and not case. The defendant then brought two suits, one in debt upon the contract and award of the arbitrator and the other in covenant upon the contract; the former was prosecuted to judgment and a verdict was entered against the plaintiffs, who made defense to the action. The present bill was brought after this verdict was entered, and, subsequent to the filing of the bill, a writ of error was taken by the plaintiffs in said action of debt. The suit in covenant is at issue and still pending.
    
      “We are now asked to restrain the defendant from further prosecuting any proceeding at law for matters arising under said contract and to decree that the defendant withdraw his pending suits. The defendant demurs to this bill and among other things alleges that the court sitting in equity has no jurisdiction over the subject matter of the bill.
    “ Both parties claim there was a final award by the arbitrator, the defendant says the finding of Peb. 16, 1883, was the final award, while the plaintiffs set up the award of Nov. 26, 1887. If there is a final award, the defendant may proceed in the common pleas to recover the money due him under the award; this is the proper forum. An action at law is the proper remedy to recover money due on an award. White v. Shriver, 2 Watts, 471. Debt is the proper remedy where the submission is under seal. Morse on Arbitration, page 580; Hamilton v. Hart, 109 Pa. 629. ‘ Equity will not interfere where there is an adequate remedy at law; as, for example, where the award simply directs the payment of a sum of money.’ Morse on Arbitration, page 603.
    “As the plaintiffs admit there was a final award in the matter, how then can we restrain the defendant from proceeding in the court that is open to him to enforce his award ? It will not do to say, he is not proceeding on the final award, this is a question of fact, or a matter which goes to the merits of his case, not to the question of jurisdiction. If his suit is premature, the common pleas will see that the plaintiffs are protected. If the common pleas has no jurisdiction, the plaintiffs must raise the question in that court. A court in equity has no power to interfere with the common pleas as a court-of law. Given’s Appeal, 22 W. N. O. 277.
    “We fail to see how the plaintiffs are hurt; in the suit brought in assumpsit, the defendant, lost and had to pay the costs; in the action of debt now pending, a like result must follow if the plaintiff’s contention is sustained that the suit was premature by reason of no final award existing at the time of bringing suit. They say they have made tender of the money found due on the final award; if this be true and the tender is kept up as provided by law, then, again, they are saved harmless.
    “And now, Dec. 3d, 1888, the defendant’s demurrer is sustained for the 3d, 4th, 5th and 6th reasons assigned, and the plaintiffs bill is dismissed at their costs.”
    The awards of the arbitrator are not printed in the paper books.
    
      The assignments of error specified the action of the court, 1, in sustaining the demurrer; 2, in dismissing the bill.
    
      J. W. Goheen., with him G. R. Fox & Son, for appellants.
    The court will enjoin a party from prosecuting, against fight and justice, proceedings at law. The court below, evidently failing to notice the distinction, treated this case as an attempt to restrain the court. The very case cited by the learned judge, Givin’s Ap., 22 W. N. O. 277, decides that, upon proper cause, a court of equity may enjoin a plaintiff in a judgment from proceeding to enforce it, and holds that in that case an injunction would lie.
    This also is essentially a bill of peace. The appellants have tendered the money found due by the final award, it has been rejected, and they are still pursued.
    If the suits now pending to enforce the alleged award, should be prosecuted to final judgment against them, these appellants are without remedy. Their offer to pay the first amount, and so buy their peace, having been rejected, is not binding, but a judgment in the suit in the common pleas would be an absolute bar.
    That the first award was not final, appears upon its face, as well as by the statement of the arbitrator. In such case, the arbitrator alone can correct the error and he has done, so. Conner v. Simpson, 104 Pa. 440; Samuel v. Cooper, 2 A. & E. 752; 29 E. C. L. 203; Nichols v. Chalie, 14 Ves. 265; Russel on Arbitration, 306, 522.
    
      If parties provide that any dispute that shall arise between them shall be determined by one named, whose decision shall be final, no action will lie for a breach by one against the other. Mononga. Nav. v. Fenlon, 4 W. &. S. 206.
    As to qualities and effect of awards, see Quigly v. De Haas, 82 Pa. 267; Antram v. Chace, 15 East, 209; Everard v. Paterson, 6 Taunt. 625; Forelands. Marygold, 1 Salk. 72; Fisher v. Pimbley, 11 East, 187; Gonsales v. Deavens, 2 Yeates, 539; Faunce v. Burke, 16 Pa. 470; McGeehen v. Duffield, 5 Pa. 499; Enniss v. O’Conner, 3 Har. & Johnson, 163; Solomons v. McKinstry, 13 Johns. 207; Randall v. Randall, 7 East, 81; Bates v. Townley, 12 Jurist, 606.
    Courts of equity have always exercised jurisdiction over awards, although the submission was by agreement out of court and incapable of being made a rule of court. Bussell on Awards, 680, 4th ed.; Story’s Equity, §§ 1450, 1456 a.
    If the arbitrator neglect to pass upon any matter included in the submission and brought to his notice, it will inevitably avoid the award. Morse on Arbitration, pp. 340, 341, 342, 345; Russell on Awards, 249, 4th ed.; Barnes v. Greenwel, Cro. Eliz. 858; Bradford v. Bryan, Willes, 268; Browne v. Meverell, Dyer, 216; Mitchell v. Staveley, 16 East, 57; Birks v. Trippet, 1 Saunders, 31, note A; Howes v. Fernie, 4 M. & Gr. 150; Stone v. Phillipps, 4 Bing. N. C. 37; Wilkinson v. Page, 1 Hare Ch. C. 276; Brophy v. Holmes, 2 Molloy’s Ch. C. 1; Richards v. Drinker, 1 Halstead, 307; Harker v. Hough, 2 Halstead, 428; Estes v. Mansfield, 6 Allen, 69; Wright v. Wright, 5 Cowen, 197; Ott v. Schroeppel, 1 Selden, 5 N. Y. 482; McNear v. Bailey, 18 Maine, 251; Carnochan v. Christie, 11 Wheaton, 446.
    The following authorities are cases in which the application was either at law or in equity to set aside the award as not final or not including all matters within the submission, and although they do not contain a judicial declaration that they were void, the effect (saving^ some few in which, under statute application, was to refer back) is the same. Mills v. Bowyers Society, 3 Kay & J. 66; Samuel v. Cooper, 2 Ad. & El. 752; Jones v. Corry, 5 Bing. N. C. 187; Russell on Awards, 448; Hutchinson v. Shepperton, 66 E. C. L. R. 955; Robson v. Railston, 1 Barn. & Ad. 723; Kleine v. Catara, 2 Gallison, 61; Dare Valley R. W., L. R. 6 Eq. 429; Valle v. North Mo. R. R., 37 Mo. 451; Ridout v. Pain, 3 Atk. 494; Kent v. Elstop, 3 East, 18; Young v. Walter, 9 Ves. Jr. 364; Duke of Buccleuch v. Metrop. B. W., 5 H. L. C. 436, L. R.; Russell on Awards, 672.
    If the reasonable construction (of the agreement of submission) appears to be that the parties intended to have everything decided if anything should be, then a decision of all the matters submitted will be imperatively required. The presumption is in favor of this purpose on the part of the disputants. Morse on Arbitration, p. 342.
    It need not appear upon the face of the award that matters embraced in the submission were brought to the notice of the arbitrator and not determined by tbe award. This may be shown by parol evidence. Morse, p. 359-361; McNear v. Bailey, supra; Mitchell v. Stavely, supra; Jones v. Corry, supra; Russell on Awards, 650, 535, 657; Robson v. Railson, supra; Kent v. Elstob, supra; Duke of Buccleuch v. Metrop. R. W., supra.
    And especially may it be shown by the arbitrators themselves. Dare Valley R. W., supra; Valle v. South Mo. R. R., supra; Brophy v. Holmes, supra.
    In an action at law upon an award or bond for the performance of an award, the fact that the arbitrator has not passed on all the matters submitted is universally allowed as a defence. Morse, p. 361; McNear v. Bailey, supra; Otto v. Schroepel, supra; Bhear v. Harradine, 7 Ex. 269; Mitchell v. Stavely, supra.
    If both parties refuse to be bound by an award, it is thereby rendered null and inoperative. After such a mutual repudiation, it is too late for one of the parties to undertake to set it up and rely upon it against the other. Morse on Arbitration, p. 532.
    
      B. E. Cham and Chas. Hunsicker, not heard, for appellee.
    The question of delay and damages had already been passed on by the arbitrator, of appellant’s own choice, and a jury, and had been decided against him.
    The award was final. Even if the arbitrator did make a mistake as to his power in refusing to consider the defenses made, he decided that he could not consider them and that is enough, whether right or wrong; but there is nothing on the face of the award to show that he refused to consider them.
    In Conner v. Simpson, supra, the award was in the alternative and because the arbitrator did not decide the matter referred to him but reported in two ways, of course his report was void. In Samuel 'o. Cooper, supra, the report of the arbitrator was set aside because on its face it showed that he had not determined the matters submitted.
    The award was not an action in court to he determined by rules of law, but was wholly dependent as to law and fact on the tribunal selected, and to this effect are the authorities cited by appellant.
    The action, then, was properly instituted in a common law court which had jurisdiction of the subject matter. A court of equity does not possess jurisdiction to interfere with the proceedings properly instituted in a proper forum.
    Jan. 8, 1889.
   Per Curiam,

Decree affirmed.  