CHAP. V. To an official referee. Submission and award constitute a contract; character of which is submission. And where differences had arisen in a winding up between persons claiming a charge upon a company's estate and the official liquidator the parties agreed that their rights should be determined in a summary way by the judge acting in the matter of the winding up, it was held that this was a submission to the judge personally as an arbitrator, and there was no appeal from his decision as an arbitrator. (Re Durham Building Society, Ex parte Wilson, 41 L. J., Ch. 164; L. R., 7 Ch. 45; and see Elvin v. Drummond, 4 Bing. 416.) Parties may agree to refer to an official referee, and apparently select the one to deal with the reference. "Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of the court or a judge as to transfer or otherwise, hear and determine the matters agreed to be referred." (52 & 53 Vict. c. 49, s. 3.) A submission is merely a contract between the parties. of which some of the terms are left to be supplied by the award. (See Lang v. Brown, 25 L. T. 297 [H. L.], per Lord Cranworth.) The submission and award together constitute a complete contract. (Wood v. Griffith, 1 Swanst. 43.) The nature of the submission, not the award, deterdetermined by mines the character of the contract. Thus, a parol submission and a written award only constitute a parol contract, and a submission not under seal with an award under seal do not make a sum awarded a specialty debt. (Talbot v. Earl of Shrewsbury, L. R., 16 Eq. 26; 21 W. R. 473.) Parol submission. A parol submission, though perfectly valid, is attended with many disadvantages, since the Arbitration Act, 1889, only applies to submissions in writing. (Ante, p. 44; Ansell v. Evans, 7 T. R. 1; Godfrey v. Wade, 6 Moore, 488; Ex parte Glaysher, 34 L. J., Ex. 41.) And, apart from the difficulty of proving the terms of a verbal contract in case of dispute, it is often ineffectual to accomplish the objects of the reference, for if the subject-matter of reference is any interest in land, an award founded on a parol submission cannot be enforced, as there is no written contract to satisfy section 4 of the Statute of Frauds. (Walters v. Morgan, 2 Cox, 369; Rainforth v. Hamer, 25 L. T. 247.) CHAP. V. under seal is Where the reference involves differences relative to When a an act to be perfected by deed the submission should be submission by deed. Thus, where it is agreed that a partnership necessary. shall be dissolved by deed, a submission to arbitration respecting partnership differences should be under seal to make an award dissolving the partnership valid. (Hutchinson v. Whitfield, Hayes (Ir. Ex.), 78.) by deed which It is no objection to a submission that one party is Submission bound by deed and the other by simple contract, as in one party a reference between a private individual and a corpora- executes and tion, which the former only signs, but to which the seal only signs. of the latter is affixed. (Tomlin v. Mayor of Fordwich, 5 A. & E. 147.) the other No stamp is necessary on an agreement to refer, Stamps. the subject-matter whereof is not of the value of 51. (54 & 55 Vict. c. 39, schedule; and see Lloyd v. Mansel, 19 L. J., Q. B. 192.) But whenever the reference is of "all matters in difference" the agreement should be stamped, since it cannot be surely known that the matter I will not be above the value of 51. If a stamp is necessary, and the submission is by an agreement not under seal, it will require a 6d. stamp; if by bond, a bond stamp; if by deed, a 10s. stamp. Where several persons having separate interests in the same subject-matter enter into an agreement to refer that matter, the agreement and award require each but one stamp. (Goodson v. Forbes, 6 Taunt. 171.) Any agreement by which the parties alter the submission A. E CHAP. V. Arbitration (even if only to enlarge the time) must be stamped as a new agreement. (Stephens v. Lowe, 9 Bing. 32.) A submission to arbitration will not bar legal proproceedings. ceedings, and even the commencement and actual pendency of an arbitration respecting a right of action is no answer, before an award is made, to an action in respect. of the same matter (Harris v. Reynolds, 7 Q. B. 71; Livingston v. Ralli, 24 L. J., Q. B. 269),—not even upon equitable grounds. (Wood v. Copper Miners' Co., 17 C. B. 561; 25 L. J., C. P. 166; Nichols v. Chalie, 14 Ves. 265; Cooke v. Cooke, L. R., 4 Eq. 77; 36 L. J., Ch. 480.) The effect of a stipulation in a submission, in which the arbitrators are named, that no proceedings in law or equity shall be brought in respect of the matters agreed to be referred, is a point not free from doubt. Lord Kenyon and Lord St. Leonards have respectively (Halfhide v. Fenning, 2 Bro. C. C. 336; Dimsdale v. Robertson, 2 J. & Lat. 58) allowed such an agreement as a bar to proceedings contrary thereto; and though the latter decision has been adversely commented upon (Scott v. Corporation of Liverpool, 3 De G. & J. 334; 28 L. J., Ch. 230), it has not been expressly overruled, and was in some degree assented to by Wood, V.-C., in Cooke v. Cooke (supra), who observed that the question remains in dubio. But it is not possible to reconcile the two former cases with the decision in Lee v. Page (30 L. J., Ch. 857), and until they are confirmed by some other court they must be regarded as very doubtful law. The point is now, however, one of very little importance, since, even in the absence of a covenant not to sue, the court will generally, upon application, stay any proceedings brought in respect of matters agreed to be referred. (52 & 53 Vict. c. 49, s. 4; post, p. 56.) Proceedings stayed. Specific performance The court will not enforce specific performance of an agreement to refer present or future differences to arbitration. (Re Smith and Nelson, 25 Q. B. 545; 59 L. J., Q. B. 533; Agar v. Macklew, 2 S. & S. 418; Street v. Rigby, 6 Ves. 818; Gourlay v. Duke of Somerset, 19 Ves. 429; South Wales Rail. Co. v. Wythes, 5 De G., M. & G. 880.) But the same result is usually attainable by an order, under section 4 of the Arbitration Act, 1889, for a stay of proceedings where an action is commenced in respect of matters agreed to be referred. (Post, p. 56; Fry, 703.) A person will be liable to an action for breach of contract if he refuse. to enter into an arbitration after having agreed to do so. (Livingston v. Ralli, 24 L. J., Q. B. 269; 5 E. & B. 132; Webb v. Taylor, 1 D. & L. 676; Donegal v. Verner, (1872) Ir. R., 6 C. L. 504.) But if he appoint an arbitrator he will not be liable to an action, though the arbitrator refuse to act. (Cooper v. Shuttleworth, 25 L. J., Ex. 114.) And before a person can succeed in such an action he must show that he had himself engaged to be bound by the award (Kingston v. Phelps, Peake, 299), and that the submission is binding on all the other parties to it. (See Biddell v. Dowse, 6 B. & C. 255; Antram v. Chace, 15 East, 209.) CHAP. V. of an agree ment to refer not enforced. Action for breach of contract to refer. conditional upon an of abortive When two or more parties enter into a contract agree- Contract ing upon some of the terms, but leaving others to be ascertained by arbitration, and the terms to be so ascer- award-effect tained are an essential part of the contract, the court reference. will not order payment, or direct specific performance, if from any cause the arbitrators fail to determine the matter so left to their décision. (Tillett v. Charing Cross Bridge Co., 28 L. J., Ch. 863; 26 Beav. 419; Darbey v. Whitaker, 4 Drew. 134; 5 W. R. 772; Fry, 152, 158.) Thus the price is an essential ingredient in a contract for sale and purchase, and where the price is to be fixed by valuers who do not agree (Milnes v. Gery, 14 Ves. 400), or by valuers, one to be appointed by each party, and the one party refuses to make a proper CHAP. V. Agreements differences. appointment (Wilks v. Davis, 3 Mer. 507), or, having appointed, instructs his valuer not to proceed (Vickers v. Vickers, 36 L. J., Ch. 946; L. R., 4 Eq. 529), the contract cannot be enforced. So, where buildings or works have been agreed to be done in such manner as a third person should direct, and he has failed to give any direction, specific performance has been refused. (Earl of Darnley v. London, Chatham and Dover Rail. Co., 36 L. J., Ch. 404; L. R., 2 H. L. 43; Tillett v. Charing Cross Bridge Co., supra.) In the case of a valuation, however, if the valuer is willing to act, and the one party throw obstacles in his way, the court will order him to allow the valuer to enter on the premises for the purposes of the valuation. (Smith v. Peters, 44 L. J., Ch. 613; L. R., 20 Eq. 511; Morse v. Merest, 6 Madd. 26; and see Dinham v. Bradford, L. R., 5 Ch. 519.) And where the valuation fails by default of the valuers, but the purchaser retains the property, he is liable to an action for the value thereof on a quantum meruit. (Clarke v. Westrope, 25 L. J., C. P. 287; 18 C. B. 765; Thurnell v. Balbirnie, 2 M. & W. 786.) So, on the ground of part performance, the court may enforce an agreement some of the terms of which are left to be settled by arbitration, which has failed. (Hart v. Hart, 50 L. J., Ch. 697; 18 Ch. D. 670.) It is a common practice to insert in partnership deeds, to refer future leases, contracts for works, policies of insurance, and other contracts, covenants or agreements providing that any differences or disputes thereafter arising between the parties shall be referred to arbitration. Agreements of this kind do not deprive the courts of jurisdiction over the matters agreed to be referred; nor will the addition of a covenant not to sue in respect of such matters prevent either party from bringing them into court (Horton v. Sayer, 4 H. & N. 643; 7 W. R. 735; |