Court of Common Pleas of Montgomery County

Meryinak v. Mlynek et al.

Plaintiff asked for a new trial, stating that the Court erred in allowing amendment of statement. The reasons for a new trial were dismissed, because it is within the power of the Court to allow an amendment, by striking out the name of a joint defendant.

No. 166, March Term, 1918.

Motion and Reasons for a New Trial.

E. J. Pennell, J. P. Hale Jenkins and Maxwell Strawbridge, Attorneys for Plaintiff.

Frank J. Bradley, Attorney for Defendant.

Opinion by Swartz, P. J., December 12, 1919.

The reasons assigned in support of a new trial relate to three rulings of the Court:-First, allowing the plaintiff to amend by striking off the name of the husband as one of the defendants; secondly, by overruling the defendant's plea of surprise; and, thirdly, by charging the jury that no set off could be allowed unless the plaintiff first established that there was something due on her claim.

It is self evident that the defendant Aniela Mlynek was not prejudiced by our ruling on her claim of set off even if we were in error. The jury found there was a sum due on the plaintiff's claim, and therefore the jury, under our charge, was bound to allow the defendant's set off if they found there was anything due thereon.

That the Court may allow an amendment by striking out one of the joint defendants upon the application of the plaintiff is also well recognized: Philadelphia v. N. C. Nichols Company, 214 Pa., 265; Benjamin v. Halgate, 51 Pa. Superior Ct., 104.

The case last cited shows that there was no ground to plead surprise. Defendant's counsel did not object to the amendment, but pleaded surprise. The defendant's witnesses were in Court, and the evidence to answer the demand of the wife was at hand.

Meryinak v. Mlynek, et al.

She called her witnesses. There was nothing whatever to show that the amendment in any way prejudiced the defense of the wife. The cause of action was not changed. The wife was the real defendant under the pleadings, and the husband was joined, but the evidence was insufficient to show that he was responsible for the acts and promises of his wife.

And now, December 12, 1919, the reasons for a new trial are dismissed and a new trial is refused. It is now ordered that judgment be entered upon the verdict of the jury upon the payment of the verdict fee.

Court of Common Pleas of Montgomery County

Supplee v. Supplee et al.

A, B and C were in partnership. The partnership was dissolved and an agreement entered into which contained an arbitration clause. A filed his Bill in Equity against B and C. seeking to have the arbitration clause enforced, and asking for an accounting. The Court dismissed the Bill and exceptions were filed to the Court's Conclusions of Law, first, in that there is no authority in equity to enforce the arbitration clause, and secondly, that the bill and prayer for general relief will not support an order for an accounting, therefore the appointment of a Master. The bill, as filed, requested an enforcement of the arbitration clause, whereas at the hearing a decree is sought for an order for an accounting, and in that respect the bill and prayer for general relief will not support such an order, and under the various authorities a prayer for specific performance of an arbitration agreement in a bill in equity is of no avail, because equity will have no power to compel defendants to submit their case to arbitrator, therefore the exceptions must be dismissed without prejudice to the plaintiff to seek his remedy in accordance with law and equity. No. 4, November Term, 1918.

Equity.

Henry Freedley, Attorney for Plaintiff.

an

J. Aubrey Anderson and M. M. Gibson, Attorneys for Defendants. Opinion by Swartz, P. J., December 27, 1919.

The exceptions relate to our conclusions of law, because we held, first, that there is no authority in equity to enforce the reference or arbitration clause under the agreement of June 21, 1916; and, secondly, that the bill and prayer for general re

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lief will not support an order for an accounting before the Court, through the appointment of a master; and, thirdly, that the costs should be placed on the plaintiff, upon the dismissal of the bill.

In our report and discussion filed on September 2, 1919, we considered with care the question whether a Court in equity had the power and authority to enforce a reference or arbitration agreement.

Counsel for plaintiff contends that the main purpose of the bill is to obtain an accounting by the partners who took all the assets of the dissolved firm and continued the business, and that the arbitration provision in the said agreement is only incidental. to such main purpose.

An examination of the bill discloses that the sole purpose of complainant is to enforce the arbitration clause in the agreement aforesaid. All the provisions for an amicable settlement, contemplated by the agreement, had failed. A single condition. survived under the agreement, that of arbitration through a referee.. This is the provision the plaintiff invokes and seeks to enforce under the bill, and the prayer is that the arbitrator should be governed solely by the terms of the said agreement. In short, the sole purpose of the bill is to enforce the specific performance of an agreement to arbitrate the claim of the complainant.

The reference, instead of being an incident to the prayer, is the sole purpose of the bill.

If, then, the bill prays for the specific performance of an arbitration agreement, it follows from the reasons and authorties already given in our report, that equity has no power to compel the defendants to submit their case to the arbitrator.

To the authorities cited, we may add, 22 R. C. L., page 300, -"An agreement to decide a controversy by arbitration will not, as a general rule, be enforced in equity." In McGunn vs. Hanlin 29 Mich. 476, partners agreed to submit their controversies and accounts to arbitrators named. As in our case, there was no stipulation that the award should be made the foundation of a judgment. The Court held,-"Such agreements will not be specifically enforced, nor will the arbitrators be compelled to act." "A Court of equity never decrees the specific performance of an agreement to arbitrate. It will not entertain a bill pray

Supplee v. Supplee, et al.

ing for such a decree." 47 L. R. A., N. S., note, page 364, and numerous cases there cited. In our own state, as early as Gray vs. Wilson, 4 Watts, 39, the Court said: "It is possible special cases may exist where a court of equity might deem it expedient to hold the parties to a tribunal constituted by themselves; but, generally speaking, these clauses are of no avail, and amount only to an empty name."

Where there is an irrevocable agreement to submit the controversy to an arbitrator named, the party refusing to comply may be liable for a breach of contract, but it does not follow that equity will intervene to compel specific performance of the agreement to arbitrate. The injured party has his remedy, but from this conclusion it does not follow that equity will take jurisdiction to correct the wrong by enforcing the arbitration. We must not confuse the wrong with the remedy. A wrong may exist, and yet equity will not correct it. But it is contended that we can appoint a master to submit an account, instead of requiring the parties to go before a referee or arbitrator. There is no averment in the bill calling upon the defendants to submit an account of the partnership assets at the dissolution of the firm, or to state an account of the amount due the plaintiff. All that the plaintiff demands is a verification of his statement, and, in default thereof, the arbitrator is to ascertain the amount due him; but this is to be ascertained under the terms of the said agreement, and the prayer is that the decree be made "as under the terms of the said agreement may be just and equitable."

The defendants were not requested to submit an account of the partnership transactions.

Before we can appoint a master to take an account, the defendants must have an opportunity to state such account; Reeder vs. Trullinger, 151 Pa., 387.

Again, a Court of equity, after it denies specific performance of an agreement to refer to arbitrators, must not substitute a master for the arbitrators: Agar vs. Macklew, 1 Simons & Stewart, 418.

We may concede that the plaintiff is entitled to an account from the continuing partners, but we repeat,-where is the averment in the bill, or where is the prayer for such an accounting?

We called the attention of counsel to this defect in the bill, in the early stages of the trial, (see pages 50 and 51 of the testi

Supplee v. Supplee, et al.

mony). We expressed doubt whether there was authority in equity to enforce the arbitration, and we suggested that the record be so modified as to enable the Court to appoint a master learned in the law, to state an account.

Under the record before us the general prayer for relief will not support a decree for an accounting by the continuing partners.

The rule for relief under the general prayer is well defined in Delaware & Hudson Canal vs Penna. Coal Co., 21 Pa., 131;"The relief to be granted, under the general prayer, must not only be consistent with the specific relief demanded, but must be sustained by the case made by the bill; and the allegations relied upon must not only be such as to afford a ground for the relief sought, but they must appear to have been introduced into the bill for the purpose, and not for the purpose of corroborating the plaintiff's right to the specific relief prayed; otherwise the Court would take the defendant by surprise, which is contrary to its principles."

The sole purpose of the bill is to enforce specific performance of the recited agreement, and the prayer relates to that agreement and nothing more. The answers aver that the agreement is not binding on the defendants, and that they cannot comply with its terms because the firm's books are lost. The testimony at the trial was directed to this agreement alone. The issue raised was confined to the inquiries whether the agreement was binding upon the defendants, and whether they could and should comply with its terms. To treat the bill as the ordinary proceeding in equity, for an account by the continuing partners after a dissolution, would be foreign to the single purpose so clearly disclosed in the averments of the complaint.

A decree appointing a master to state the ordinary partnership account is not in accord with the said averments, or with the specific prayer, nor is it consistent with such prayer. "The relief, under the general prayer, must be consistent with that specifically prayed, as well as with the case made by the bill." Passyunk Building Association Appeal, 83 Pa., 441.

The rule in equity requires "that the relief afforded by the decree must conform to the case, as made out by the pleadings, and that it must be consistent with the relief prayed for." Luther vs Luther, 216, Pa., 9.