Page:Federal Reporter, 1st Series, Volume 10.djvu/368

 356 FEDERAL REPORTER. �" If two poisons, whether in the same or in a different deetl from that whioh creates the liability, agree to refer the matter upon which the liability arises to arbitration, that agreement does not take away the right of action. But if the original agreement is not simply to pay a sum of money, but that a sum of money shall be paid if somethiug else happens, and that soniething else ia that a third person shall settle the amount, thea no cause of action arises untilthe third person has so assessed the sum." �The cases where an action will not lie, and the case where an action will lie, are here precisely distinguished. It is the negative words contained in the fourteenth stipulation, that no suit or action for the recovery of any claim by virtue of this policy shall be sustain- able until after an award, which place this case in the latter class of cases. That this plea is, in law, good, is well settled by authority. Under our System of pleading we have no writteu statement respon- sive to the pleas of defendants, except where they amount to a recon- ventional demand. But the plaintiffs may give in evidence any matter in disproval or avoidance of the pleas, as if the practice of the courts allowed a responsive pleading and he had pleaded the same. The production of the policy by the plaintiffs maintains the substance of this plea, i. e., the covenant not to sue ; the stipulation is contained therein as is averred. That being so, there could be but two facts which could have avoided this plea, — either that it had been waived by defendants, or that insured had oliered to perform, i. e., had offered to arbitrate, and a refusai on the part of defendants. The plaintiffs have introduced no evidence tending to establish any fact in avoidance of the condition or covenant which the contract they sue upon contains. �The court having announced its conclusion that there was no evi- dence to be submitted to the jury, the plaintiffs submitted to a non- suit, which was accordingly entered. ��� �