Collins v. Freas , 77 Pa. 493 ( 1875 )

Mr. Justice Mercur

delivered the opinion of the court,

The first assignment is to the admission in evidence, of the record of the judgment previously taken in the case. The judgment had been opened generally. No conditions or restrictions had been imposed on the defendant therein. The pleas subsequently entered struck at the root of the award on which the action was founded, and denied the existence of any indebtedness; the trial then was to be had as if no judgment had been entered. The same burden of proof was imposed on the plaintiff. It gave to the defendant the same defences that were open to him at the commencement of the suit: Leeds v. Bender, 6 W. & S. 315; Dennison v. Leech, 9 Barr 164; Carson et al. v. Coulter et al., 2 Grant 121; West v. Irwin, 24 P. F. Smith 258. The record was therefore inadmissible. The language of the court in their charge to the jury in relation to it was further calculated to prejudice the case.

Regularly proof of the submission should precede the award; but the order in which the evidence shall be given is so far within the discretion of the court, that the second assignment is not sustained.

If the witness, Marr, was interested in having the award made in favor of Freas, and he, Marr, without the knowledge and authority of Collins, went before the arbitrators and influenced their decision, the evidence covered by the third assignment should have been received. His position was, in that case, not merely that of a witness whose answer to a collateral question cannot be contradicted, but a party to the alleged illegal award.

The fourth and fifth assignments will be considered together.

It seems to us too clear for argument, that in so far as an award is in regard to a claim not submitted to the arbitrators, and between persons not parties to the submission, it is bad. Nor can the mere recital, in an award, of' the submission, be proof of the existence of a submission, nor of its terms.

To the extent that the learned judge qualified his answers to the points covered by these two assignments we think he erred. The points should have been affirmed. The remaining assignments are not sustained any further than we have already stated.

Judgment reversed and a venire facias de novo awarded.