The opinion of the court was delivered,
by Sharswood, J.
— The Act of Assembly of March 27th 1713, “An act for Limitation of Actions,” 1 Smith’s Laws 76, copying the words of the statute 21 Jac. 1, c. 16, enacts that “ all actions of debt grounded upon any lending or contract without specialty” shall be commenced and sued within six years next after the cause of such action or suit, and not after. It was held in Hodsden v. Harridge, 2 Saund. Rep. 64 b., that an action of debt on an award was not within the statute. The award indeed in that case was under seal, but as it was in pursuance of a parol submission, that circumstance was not regarded as material. By a later statute of 3 & 4 Wm. 4, c. 42, all actions of debt upon an award, where the submission is not by specialty, shall be sued within six years': Billings’s Law of Awards 213. This court, however, followed the English construction of the statute in Rank v. Hill, 2 W. & S. 56, though it would seem with much hesitation, and simply on the ground of authority; for it is said in the opinion: “ One would suppose the submission to be an engagement to abide by what the arbitrators should direct, and a promise to perform it.” "We have no statutory amendment of the law as they have in England. We must hold then that a debt created by award is not grounded on any contract or lending; consequently that an award upon even a parol submission is not within the act.
The question which we are now to decide is, whether the cause of action, as set forth in the 1st and 2d counts of the declaration, is a debt created by an award; or, on the other hand, is grounded on a contract without specialty. There is no material difference between the 1st and 2d counts in the statement of the cause of action. Indeed it is evident that the pleader by any variance in the mode of statement could not have avoided the question which arises. The counts are both properly drawn in strict accordance with that which the facts of the case only warranted. [90]*90These counts are in substance that the defendants accepted their charter conferring upon them the franchise of carrying passengers for hire on and along Green and Coates streets, with the condition precedent that before commencing to use the said streets they should purchase, at the option of the owners, the stock of horses, omnibuses, sleighs and harness, owned and used upon said streets, at a price to be assessed by three disinterested persons to be chosen in the manner prescribed in the act of incorporation, who should appraise the said stock; that the defendants accepted the charter and commenced the road September 5th 1858; that three disinterested persons were selected to assess the price, who did appraise the said stock November 23d 1858 ; whereupon a cause of action accrued to the plaintiffs to have and recover from the defendants the amount of the appraisement, with interest thereon. We may dismiss entirely the consideration of the 3d count; because the jury have found a verdict for the defendants on the other pleas as to that count. It is now immaterial whether the plea of the statute would have been a good answer to that. Each count in a declaration is in law the statement of a separate and distinct cause of action, and pleas, though put in generally to the whole, are to be applied severally to each count. It is true, no doubt, that if the statute was not a good plea to either the 1st or 2d count, the judgment on the whole record must, on the demurrer, be for the plaintiffs. As we have seen, however, there is no substantial difference between them.
A contract is an agreement upon consideration between two or more persons to do or not to do a particular thing. Here there undoubtedly was a contract. The plaintiffs were to exercise their' Option of selling their stock, which they did as the 1st count expressly and the 2d impliedly avers; otherwise it would have been bad. The defendants had of necessity a similar option of purchasing, which they did, as averred, by accepting the charter and commencing the road. Here is the aggregatio mentium — all the essential elements of a contract. If so, then the action must be held to be grounded on a contract without specialty. By specialty is meant an instrument under seal. That one of the teiyns of the contract — the price — was to be ascertained in a mode prescribed by a statute, does not alter the nature of the ease. It has been held, therefore, that the Act of Bimitations is a good plea in an action by a justice of the peace for his fees: Harris v. Christian, 10 Barr 233. There a statute fixed conclusively the price of the services rendered by the justice. The plaintiffs could never have succeeded on a bare count on the assessment, or what they term the award, without averring, as they have done, the exercise of the option by both parties — in other words, the contract. In an action on an award to go back and set out the cause of action, which was submitted to the arbi[91]*91trators, would manifestly be improper: surplusage and immaterial, if not bad. An award is the judgment of a tribunal selected by the parties to determine matters actually in variance between them — not merely to appraise and settle the price of property contracted for under tbe stipulation that this term of the contract was to be so ascertained. Had the parties made the contract, and afterwards, on a dispute arising, chosen arbitrators to determine what was due upon it, that might have been an award. The case is entirely different where the parties originally agree to buy and sell at a sum to be fixed by an appraisement to be made by a third person or persons. When the original contract is established by competent and sufficient evidence, then indeed the assessment thus made by the authority of the parties, or by authority of law, as in the case of the justice of the peace, may be conclusive as to the price; but there is nothing in the transaction to conclude the parties as to anything else. They may fall back — dispute the existence of any contract at all — or prove that it was tainted with fraud or illegality. Here is the clear and palpable distinction between such an appraisement and an award, which, as the court say in Rank v. Hill, “ seems to be considered rather as a judgment than as an agreement of the parties made through the authorized agency of others.” The case before us was in no sense a judgment, but simply an agreement through the authorized agency of others. Such an appraisement has been held not to be an award within the stamp laws : Leeds v. Burrows, 12 East 1; Perkins v. Potts, 2 Chit. 399. In Sybray v. White, 1 M. & W. 435, a written verdict of a miners’ jury, who were to determine whether the defendant was possessed of a certain shaft of a mine by the agreement of both parties, was held not to require an award stamp. The document, though in the nature of an award, and strong evidence against the defendant, was not considered as an award in fact, or conclusive in evidence as an award would have been, and the jury were looked upon rather as accredited agents than arbitrators: Russell on Arbitrators 243. So a monthly settlement between partners in a stage-coach business, made by a person named in the agreement, who was to settle what was to be paid and received monthly by each partner, was held not to be an award requiring a stamp as such : Carr v. Smith, 1 Dav. & M. 192. , Nor is such an appraisement subject to the strict rules governing arbitrations and awards: Kelly v. Crawford, 5 Wall. (S. C.) 785. It would not be necessary that the appraisers should decide upon evidence heard in the presence of the parties.
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The opinion of the court was delivered,
by Sharswood, J.
— The Act of Assembly of March 27th 1713, “An act for Limitation of Actions,” 1 Smith’s Laws 76, copying the words of the statute 21 Jac. 1, c. 16, enacts that “ all actions of debt grounded upon any lending or contract without specialty” shall be commenced and sued within six years next after the cause of such action or suit, and not after. It was held in Hodsden v. Harridge, 2 Saund. Rep. 64 b., that an action of debt on an award was not within the statute. The award indeed in that case was under seal, but as it was in pursuance of a parol submission, that circumstance was not regarded as material. By a later statute of 3 & 4 Wm. 4, c. 42, all actions of debt upon an award, where the submission is not by specialty, shall be sued within six years': Billings’s Law of Awards 213. This court, however, followed the English construction of the statute in Rank v. Hill, 2 W. & S. 56, though it would seem with much hesitation, and simply on the ground of authority; for it is said in the opinion: “ One would suppose the submission to be an engagement to abide by what the arbitrators should direct, and a promise to perform it.” "We have no statutory amendment of the law as they have in England. We must hold then that a debt created by award is not grounded on any contract or lending; consequently that an award upon even a parol submission is not within the act.
The question which we are now to decide is, whether the cause of action, as set forth in the 1st and 2d counts of the declaration, is a debt created by an award; or, on the other hand, is grounded on a contract without specialty. There is no material difference between the 1st and 2d counts in the statement of the cause of action. Indeed it is evident that the pleader by any variance in the mode of statement could not have avoided the question which arises. The counts are both properly drawn in strict accordance with that which the facts of the case only warranted. [90]*90These counts are in substance that the defendants accepted their charter conferring upon them the franchise of carrying passengers for hire on and along Green and Coates streets, with the condition precedent that before commencing to use the said streets they should purchase, at the option of the owners, the stock of horses, omnibuses, sleighs and harness, owned and used upon said streets, at a price to be assessed by three disinterested persons to be chosen in the manner prescribed in the act of incorporation, who should appraise the said stock; that the defendants accepted the charter and commenced the road September 5th 1858; that three disinterested persons were selected to assess the price, who did appraise the said stock November 23d 1858 ; whereupon a cause of action accrued to the plaintiffs to have and recover from the defendants the amount of the appraisement, with interest thereon. We may dismiss entirely the consideration of the 3d count; because the jury have found a verdict for the defendants on the other pleas as to that count. It is now immaterial whether the plea of the statute would have been a good answer to that. Each count in a declaration is in law the statement of a separate and distinct cause of action, and pleas, though put in generally to the whole, are to be applied severally to each count. It is true, no doubt, that if the statute was not a good plea to either the 1st or 2d count, the judgment on the whole record must, on the demurrer, be for the plaintiffs. As we have seen, however, there is no substantial difference between them.
A contract is an agreement upon consideration between two or more persons to do or not to do a particular thing. Here there undoubtedly was a contract. The plaintiffs were to exercise their' Option of selling their stock, which they did as the 1st count expressly and the 2d impliedly avers; otherwise it would have been bad. The defendants had of necessity a similar option of purchasing, which they did, as averred, by accepting the charter and commencing the road. Here is the aggregatio mentium — all the essential elements of a contract. If so, then the action must be held to be grounded on a contract without specialty. By specialty is meant an instrument under seal. That one of the teiyns of the contract — the price — was to be ascertained in a mode prescribed by a statute, does not alter the nature of the ease. It has been held, therefore, that the Act of Bimitations is a good plea in an action by a justice of the peace for his fees: Harris v. Christian, 10 Barr 233. There a statute fixed conclusively the price of the services rendered by the justice. The plaintiffs could never have succeeded on a bare count on the assessment, or what they term the award, without averring, as they have done, the exercise of the option by both parties — in other words, the contract. In an action on an award to go back and set out the cause of action, which was submitted to the arbi[91]*91trators, would manifestly be improper: surplusage and immaterial, if not bad. An award is the judgment of a tribunal selected by the parties to determine matters actually in variance between them — not merely to appraise and settle the price of property contracted for under tbe stipulation that this term of the contract was to be so ascertained. Had the parties made the contract, and afterwards, on a dispute arising, chosen arbitrators to determine what was due upon it, that might have been an award. The case is entirely different where the parties originally agree to buy and sell at a sum to be fixed by an appraisement to be made by a third person or persons. When the original contract is established by competent and sufficient evidence, then indeed the assessment thus made by the authority of the parties, or by authority of law, as in the case of the justice of the peace, may be conclusive as to the price; but there is nothing in the transaction to conclude the parties as to anything else. They may fall back — dispute the existence of any contract at all — or prove that it was tainted with fraud or illegality. Here is the clear and palpable distinction between such an appraisement and an award, which, as the court say in Rank v. Hill, “ seems to be considered rather as a judgment than as an agreement of the parties made through the authorized agency of others.” The case before us was in no sense a judgment, but simply an agreement through the authorized agency of others. Such an appraisement has been held not to be an award within the stamp laws : Leeds v. Burrows, 12 East 1; Perkins v. Potts, 2 Chit. 399. In Sybray v. White, 1 M. & W. 435, a written verdict of a miners’ jury, who were to determine whether the defendant was possessed of a certain shaft of a mine by the agreement of both parties, was held not to require an award stamp. The document, though in the nature of an award, and strong evidence against the defendant, was not considered as an award in fact, or conclusive in evidence as an award would have been, and the jury were looked upon rather as accredited agents than arbitrators: Russell on Arbitrators 243. So a monthly settlement between partners in a stage-coach business, made by a person named in the agreement, who was to settle what was to be paid and received monthly by each partner, was held not to be an award requiring a stamp as such : Carr v. Smith, 1 Dav. & M. 192. , Nor is such an appraisement subject to the strict rules governing arbitrations and awards: Kelly v. Crawford, 5 Wall. (S. C.) 785. It would not be necessary that the appraisers should decide upon evidence heard in the presence of the parties. They could decide, and indeed would be expected to fix the value of the articles, upon their own knowledge of the subject, though doubtless they might seek information from' other quarters. We think, therefore, that the Statute of Limitations was a good plea to the 1st and 2d counts of the declaration. The [92]*92determination of this question adversely to the plaintiffs renders unnecessary the consideration of the other assignments of error.
The plaintiffs Moore and Rich afterwards, on the 5th of March 1870, filed another bill in the Court of Common Pleas against the defendants, the Railway Company.
The bill in its first nine paragraphs set out the proceedings up to the commencement of the suit in the Supreme Court.
10. averred the commencement of the suit wherein the plaintiffs “respecting the decree of this court, declared solely on the said appraisement; hut the said defendants, in contempt thereof, pleaded thereto, that the cause of action had not accrued within six years — but the learned judge, who tried the issue of fact which was made on the validity of the said appraisement, confined the jury to said issue. And the case in said court so proceeded, that the said jury, on the fact, found in favor of the validity of said appraisement, and the learned judge who tried the cause found likewise on the law.
11. “ It was the duty of the defendants to certify said record to the Supreme Court in such way that the legal and binding effect of said award should be the main question in the case for the decision of that court, that the final decision thereof should determine the right of the respective parties to the said sum of $24,797.20, under the decree of this court; whereas the issue presented was on the plea of the statute on which the same was exclusively decided.
12. “ The defendants, by reason of, their avoidance of the question which this tribunal, by its decree, gave them the liberty of presenting in an action, have acted in contempt of said decree, and that it is against equity and good conscience, that as the said defendants secured the use of the streets in their charter by reason of the relation established and created by virtue of the decrees of this court, and have obtained possession of all of the property of your orators, specified in said appraisement, by reason of your orators’ reliance on the said decrees; that the judgment in their favor on the plea of the statute, should bar your orators from the recovery of the balance due them on said appraisement.
13. “ As it was optional with this tribunal to award the entry of an action to determine the validity of the said appraisement, and as its validity, so far as the defendants permitted the same to he adjudged, has been affirmed in said action; it is now only equitable that your honors should decree the payment of said appraisement absolutely, as thereby only can full and adequate relief be afforded your orators.”
The prayers were, that the defendants pay the sum of $9797.20, with interest, or be restrained from the use of Green and Coates streets.
[92]*92Judgment reversed, and now judgment for the defendants on the demurrer.
The defendants demurred to the bill for want of equity.
On the 9th of July 1870, the Court of Common Pleas gave judgment for the defendants on the demurrer, and dismissed the bill.
The plaintiffs appealed to the Supreme Court, and assigned the refusal of their prayers by the court below and the dismissal of their bill, for error.
This appeal (No. 89, to January T. 1871), was heard February 7th 1871, before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., being at Nisi Prius.
D. W. Sellers, for appellants.
— The Court of Common Pleas has no power, as a court of equity, to award an issue to be tried in another court. The obligation of the defendants to pay before using the streets was imperative: Sutcliff v. Isaacs, 1 Parsons’ R. 497; Cox v. Willetts, 9 Penna. L. Jour. 327. The defendants having used the streets before payment, a court of equity will afford relief: McGowin v. Remington, 2 Jones 63; and in a final decree will settle all the rights without aid at law: McCallum v. Water Co., 4 P. F. Smith 40. A majority of appraisers can make a binding appraisement: Quay v. Westcott, 10 Id. 163.
6r. M. Dallas (with whom was Gf- W. Biddle), for appellees.—
The present bill cannot be sustained as a bill in review of their prior bills, so that the previous decrees may be carried into full execution, because the decree of March 5th 1859 sustained a demurrer denying a decree for the payment of the money claimed, and the prayer of the present bill is for a decree for payment of that same money.
The Court of Common Pleas, in suggesting the entry of an amicable action, did so with a view of turning the parties over to a court of law for a purpose which it had already decided not to be within its equity jurisdiction, but did not intend to control the course of the proceedings at law.
The appellants, by delaying to proceed for eight years, and then by summons, though the decree was for an amicable action forthwith, and also by declaring directly upon the decree of March 5th 1859, and not “ solely on the said appraisement,” show that they did not intend to proceed under the decree of May 23d 1859, but on the contrary, proceeded in total disregard of it.
The appellants, having demurred to the appellees’ plea of the Statute of Limitations, and fully argued the same, cannot, after having taken the chance of a judgment thereon in their favor, be now permitted to allege that the decision of the issue to which they thus assented, has determined nothing.
[94]*94The opinion of the court was delivered, February 27th 1871, by Agnew, J. — The Court of Common Pleas, by the decree of March 5th 1859, sustained the demurrer to the plaintiifs’ bill, so far as it prayed for a decree to enforce payment of the award of $24,797.20, on the ground that the plaintiffs had an adequate remedy at law. The effect was to dismiss this much of the bill, and to send the collection of the award into a court of law. The modified decree of May 23d 1859 did not, in its effect, change this part of the former decree'. Its purpose was to enable the defendants to dissolve the injunction, and thereby obtain possession of the omnibus stock, horses, &c., and to proceed to finish their railway: and it therefore directed a conditional or qualified payment of the award of $24,797.20. But it still substantially preserved the former decree as to the mode of enforcing the award by ordering the parties to proceed in a court of law to try the question as to-its legal and binding effect. The modification of the second decree by the agreement of the parties of the 26th of May 1859, in nowise altered this feature. The payment of the $15,000 absolutely to that extent established the modified decree irreversibly, while the residue of the sum awarded was made expressly subject to the terms of the decree. It is clear, therefore, that there was no more to be done in the Common Pleas on its equity side until the plaintiffs had established their award at law, or the defendants had refused to enter an amicable action according to the decree. The remedy was therefore wholly in the hands of the ' plaintiffs themselves, with an imperative order on the defendants to enter an action at law “forthwith” to try the legal and binding effect of the award. From this analysis of the proceeding in equity it is plain that the action at law was not a mere issue of fact sent'by a chancellor to a jury to inform his conscience, but was a remission of the plaintiffs to a court of law to decide not only contested facts, but to establish “ the legal and linding effect of the award” in all respects. This involved questions of law and fact, to wit, its character either as an award or a mere appraisement, its obligatory effect as made by two instead of three appraisers, and its validity as a fair valuation untainted by fraud. The result of the action was necessarily final. It being an action at law, tried in an independent court of competent jurisdiction, proceeding in the course of the common law, it bore its own fruits, of which one is the finality which attends the trial and judgment in a common-law action.
Whether the final decision in this court was right or wrong cannot now he discussed. It undoubtedly determined finally all questions contested before it. The determination against the plaintiffs on the plea of the Statute of Limitations was on the ground that the writing in question was not an award but an appraisement ; casting the right of action upon the assumpsit, arising [95]*95from the purchase of the omnibus stock, &c., and not upon the instrument itself. As a mere assumpsit to pay for goods sold and delivered, the action of course fell within the statute limiting the right of recovery to six years. This was the judgment of a competent court, having possession of the cause, upon the legal and binding effect of the writing, which was thus restricted to a period of six years. It fell within the very terms of the decree which remitted its collection to a court of law. Then, as to the facts on which the judgment was rendered, we find a decree made finally on the 26th of May 1859, to proceed forthwith to try the legal and binding effect of the award (so termed in the decree), and a payment absolute of $15,000, being $2921 more than the defendants admitted to he owing. Now, nothing was done to carry out this so-called award, in pursuance of this decree, until the 27th of February 1867, a period of nearly eight years, when the plaintiffs brought their action upon the writing in the Supreme Court. This was inexcusable laches. Under these circumstances the Court of Common Pleas was met by the final judgment in the action at law, when the present bill came before it, and rightly decided that it was a bar to any further proceeding in the equity case. In view of the nature of the action and judgment in the Supreme Court, no other conclusion could be arrived at. It was not an issue which the Common Pleas could disregard, but a final determination upon the legal arid binding effect of the writing.
The decree is therefore affirmed, and the costs ordered to be paid by the appellants.