For the prosecutor, Filbert L. Rosenstein.
For the defendants, David L. Cole.
Before Justices Parker, Campbell and Bodine.
The opinion of the court was delivered by
PARKER, J. This is a writ of certiorari directed to the judge of the Circuit Court and bringing up an order made by him by virtue of the Arbitration act of 1923 (Pamph. L., p. 291), which in section 3 authorizes the judge under certain circumstances, where there is a provision in a written contract to settle by arbitration a controversy thereafter arising out of the contract or the refusal to perform the whole or any part thereof (section 1), "that such arbitration proceed in the manner provided for in such agreement" (section 3).
The conceded facts are that Goldberg signed two written contracts with the defendant Reliable Silk Yarn Company for the purchase of silk on certain terms not now material, and containing the two following paragraphs:
"All disputes arising out of this contract must be arbitrated in accordance with the arbitration rules of the Silk Association of America.
"All of the provisions of the rules of the Silk Association of America and its divisions, as far as consistent with the foregoing and applicable to the merchandise covered by this contract, are hereby made a part hereof."
Just what the disputes are does not appear and is not material; but the Reliable company pressed for an arbitration, and, as provided in the act, filed a petition to the Circuit Court, praying for an order to have the arbitration proceed; the judge made such an order; later he opened it and allowed a further hearing, and after that hearing, made the same order again and granted exceptions, whereupon this writ of certiorari was allowed.
We consider that there was error in making the order here complained of. The statute provides that upon petition and
notice by "a party aggrieved by the failure, neglect or refusal of another to perform under an agreement in writing providing for arbitration" * * * "the justice or judge shall hear the parties, and upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the agreement * * * be in issue, an order shall be made directing a summary trial thereof. Where such an issue is raised, the party alleged to be in default may * * * demand a jury trial of such issue, and if such demand be ...