Supreme Court of Washington. STATE ex rel. WILLIAMS v. SUPERIOR COURT FOR SPOKANE COUNTY. No. 13224.

April 28, 1916. Department 2. Action by Cross, Duffy & Heckman against Rice & Co. and another, in which Clyde H. Williams filed a complaint in intervention, which was dismissed. Application by the State, on relation of Clyde H. Williams, for a writ of review to the Superior Court of Spokane County, William A. Huneke, Judge. Judgment of Dismissal affirmed. Morris, C. J., and Holcomb, J., dissenting. Under Rem. & Bal. Code, 202, intervener, to whom subcontractors sublet part of work, held not entitled to intervene in an action by the subcontractors against the principal contractor. *40 **28 P. W. Kimball, of Spokane, for plaintiff. A. M. Craven, of Spokane, W. T. Beck, of Republic, Wakefield & Witherspoon, of Spokane, and Bogle, Graves, Merritt & Bogle and Preston & Thorgrimson, all of Seattle, for respondent. *41 MAIN, J. This case is here for the purpose of reviewing a judgment of the superior court, dismissing a complaint in intervention. The facts are these: On June 29, 1911, the Kettle Valley Railway Company, a corporation, contracted with L. M. Rice & Co., a corporation, for the construction of 41 miles of railroad. Rice & Co. took this contract, not only for the benefit of itself, but for the benefit of Boomer & Hughes, and Grant Smith & Co. In referring to these parties the name of Rice & Co. alone will be used. The contract covered all the work of grading the right of way, erecting trestles, and otherwise preparing the roadbed for the rails. The work was to be paid for at certain unit prices specified in the contract, and was to be done according to the plans and specifications prepared by the railroad company. The engineer of the railroad company was made the arbitrator to determine disputes, and his decision was to be final and conclusive upon the parties. On October 14, 1911, Rice & Co. assigned or sublet the contract, excepting a small portion of the clearing, to Cross, Duffy & Heckman. The contract between Rice & Co. and the railroad company was made a part of this contract. Cross, Duffy & Heckman were to receive the entire compensation paid by the railroad company, less 7 1/2 per cent. On March 15, 1912, Cross, Duffy & Heckman entered into a written contract with Clyde H. Williams for a certain portion, 5 miles in length, of the work. In this contract the unit prices were not the same as in the contract of the railroad company with Rice & Co. Neither did this

contract refer to that contract and make it a part thereof. The work was to be done according to plans and specifications of the railroad company, and the engineer of that company was to make the classification, and decide all questions arising from or growing out of the agreement, and his decision was final *42 and conclusive between the parties. Neither the railroad company nor Rice & Co. were parties to this contract. On or about the 24th day of November, 1914, after the work covered by the contract of the railroad company with Rice & Co. which was subsequently assigned to Cross, Duffy & Heckman, had been completed, Cross, Duffy & Heckman brought an action against Rice & Co. and the railroad company, claiming a large balance to be due upon the contract. This balance, as alleged in the complaint, was made up of items for underestimates, erroneous classification, extra expense caused by alteration of the plans, and other similar items. After this action had been instituted, Williams, upon an ex parte application, filed his complaint in intervention, in which he claimed that under his contract with Cross, Duffy & Heckman, there was a balance due him in the sum of $67,000 from both the plaintiffs and the defendants in that action. In the complaint in intervention, the items for which recovery was sought were erroneous classification, and a small amount of extra work. Subsequently a second amended complaint in intervention was filed. To this complaint a demurrer was interposed and sustained. Whereupon a **29 judgment was entered dismissing the second amended complaint in intervention. [1] [2] The question here for determination is whether the judgment dismissing the second amended complaint in intervention was erroneous. The action in which the intervention was sought was purely a law action. At common law in such an action there was no right of intervention. Where the right exists it must be by reason of a statute. Rem. & Bal. Code, 202, provides: Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either party, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is *43 sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by a complaint setting forth the grounds upon which the intervention rests, filed by leave of the court or judge on the ex parte motion of the party desiring to intervene. This statute was borrowed from the state of California. Code Civ. Proc., Kerr's Suppl., 1906-1909, 387. A like or similar statute exists in a number of other states. The rule by which it is to be determined whether a person has a right to intervene under the provisions of the statute was stated by Mr. Justice Filed in Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569, as follows: The interest mentioned in the statute, which entitles a person to intervene in a suit between other parties, must be in the matter in litigation, and of such a direct and immediate character that the

intervener will either gain or lose by the direct legal operation and effect of the judgment. The construction of the statute as made in that case has been adopted and approved in Hindman v. Colvin, 47 Wash. 382, 92 Pac. 139; Coffman v. Spokane Chronicle Pub. Co., 65 Wash. 1, 117 Pac. 596, Ann. Cas. 1913B, 636; Smith v. Gale, 144 U. S. 509, 12 Sup. Ct. 674, 36 L. Ed. 521; McClurg v. State Bindery Co., 3 S. D. 362, 53 N. W. 428, 44 Am. St. Rep. 799; Harlan v. Eureka Mining Co., 10 Nev. 92. Mr. Pomeroy in the third edition of his work on Code Remedies, after reviewing a number of representative cases, in section 430 states the test by which it is to be determined whether a person has such an interest in litigation pending between other parties as will entitle him to intervene, as follows: The intervener's interest must be such that if the original action had never been commenced, and he had first brought it is the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought, or if the action had first been brought *44 against him as the defendant, he would have been able to defeat the recovery in part at least. The rule being that the interest mentioned in the statute which entitles a person to intervene in a suit between other parties must be of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment, it remains to inquire whether the intervener here is within the rule. The intervener being a mere subcontractor under Cross, Duffy & Heckman, there was no privity of contract between him and the defendants in the action, and he therefore could not maintain an action against such defendants. McCarthy v. Kirksley, 70 Ark, 444, 69 S. W. 53; Richmond R. & E. Co. v. Harris (Va.) 32 S. E. 458; Huntsville B. L. & M. S. Ry. Co. v. Corpening, 97 Ala. 681, 12 South. 295. The intervener was not a lien creditor, but his rights were based upon his contract with Cross, Duffy & Heckman, the plaintiffs in the action. In a sense, at least, he was a contract creditor of the plaintiffs. He was interested in the litigation in common with the plaintiffs to the extent that if the plaintiffs prevailed, a larger fund would exist out of which he might realize upon any judgment he might obtain against them upon his contract. A creditor has not such a direct interest in the litigation that he has a right to intervene for the purpose of resisting the recovery by the plaintiff when, if such recovery were successfully resisted, there would be a larger fund in the hands of the defendant out of which he might realize upon his claim. Hindman v. Colvin, 47 Wash. 382, 92 Pac. 139, supra; Kansas & C. P. Ry. Co., v. Fitzgerald, 33 Neb. 137, 49 N. W. 1100. If a creditor has not such an interest in the litigation as will entitle him to intervene and resist recovery by the plaintiff because if such defense be successful a greater fund would exist out of which he could realize upon his claim against the defendant, it would seem to folllow that a contract creditor of the plaintiff does not have such an interest in the litigation*45 as would entitle him to intervene for the purpose of assisting in the recovery against the defendant, and thereby enhance the fund in the hands of the plaintiff out of which

the intervener's claim could be realized. The intervener will neither suffer loss nor gain by the direct legal operation and effect of whatever the judgment may be in the action between the original parties. If the plaintiff lose in that action, the intervener still has a right to sue the plaintiffs upon his contract. If the plaintiff prevail in that action, the intervener's rights upon his claim against the plaintiff are not affected. His rights are upon a contract with the plaintiff alone. He has no rights growing out of any contract with the defendants; there is no contractual relation between him and the defendants. The intervener in support of his claim of a right to intervene cites the cases of Muhlenberg v. Tacoma, 25 Wash. 36, 64 Pac. 925; Taylor v. Adair, 22 Iowa, 279; Stich v. Dickinson, 38 Cal. 608; Coffey v. Greenfield, 55 Cal. 382; Morey v. Lett, 18 Colo. 128, 31 Pac. 857. All of these cases, with one exception, **30 are easily distinguishable from the case now under consideration. In the Muhlenberg Case, the question at issue was the validity of certain city warrants. The intervener claimed to own the warrants, and thus had a direct interest in the matter in litigation. In the Taylor Case the action was upon a promissory note, and the intervener, as executor for a deceased person, claimed that the note was the property of the estate. In the Stich Case the action was upon a promissory note, and the intervener claimed to be the rightful owner thereof. In the Morey Case it was said: The privity between Lett [intervener] and Harvey [principal defendant] in the contract is fully established. It thus appears that in those cases the intervener was either asserting title to the subject-matter in litigation, or the relation of privity existed. In the present case the intervener*46 has no right or title to the subject-matter in litigation between the plaintiffs and the defendants. Neither is there any privity between him and the defendants. His only right is a judgment against the plaintiffs for any balance that may be due upon his contract with them. The Coffey Case, it must be admitted, is not so easily distinguishable as the other cases mentioned. In that case the intervener was the holder of a sheriff's certificate of purchase derived through the foreclosure of a mortgage. The plaintiff brought the action against the defendant, attempting to establish that the defendant had held the title to the property covered by the mortgage in trust for the plaintiff. The right of the intervener was there sustained, because the intervener was interested in the success of the defendant in that action, and because he had an interest in the subject-matter in litigation. It was there said that he was interested in the success of the defendant because the judgment would determine all claims of the plaintiffs to the property, and render the intervener's title, if he obtained a deed from the sheriff, as against them indisputable. The intervener there was interested in the subject-matter of the litigation by virtue of his mortgage upon the property. It had been foreclosed and merged into the sheriff's certificate of purchase. Had the decision rested alone upon the intervener's interest in the subject-matter of the litigation, it doubtless would have been within the rule above stated, by which the right of intervention is to be determined. But

the holding that the right of intervention existed because of his interest in the success of the defendant in the litigation would hardly bring the case within the rule. In the opinion the previous holdings from the same court are not referred to. Neither is any reference made to the decisions of other courts construing like or similar statutes. Even though that case may not be distinguishable wherein it holds that the intervener was interested in the success of the defendant in the action, and thus had a right to intervene, we do not think it should *47 be given controlling force, and thus modify the well-settled rule as established by the adjudications of the courts of a number of states, where a like or similar statute exists. In the case now before us, the intervener did not have a direct interest in the success of either party, or an interest against both, or in the subject-matter in litigation between the plaintiffs and the defendants, such that he would suffer gain or loss by the direct legal operation and effect of any judgment that might be rendered in that action between the original parties, and hence, under the rule, did not have the right to intervene. The judgment will be affirmed.

PARKER and BAUSMAN, JJ., concur.

HOLCOMB, J. It seems plain to me, upon the allegations demurred to of the amended complaint: (1) That relator has an immediate and substantial interest, as privy of contract to all the parties, in the subject-matter of the litigation in the principal case; (2) that he is most likely to suffer loss if the defendants prevail; (3) that he is certain to gain if the plaintiffs succeed therein, and proportionately with the degree or amount of the success of plaintiffs; (4) that the intervention would avoid a multiplicity of suits involving the rights of the parties; and (5) that the intervention would work no harm to the railroad company or Rice & Co., or Cross, Duffy & Heckman, other than as justice would demand. It seems obvious to me that the case falls squarely within the statute of intervention and the rule enunciated in Pomeroy's Code Remedies, 430, and as applied in Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569. The judgment should be reversed, and the right of intervention granted. Therefore I dissent.

MORRIS, C. J., concurs.

JACQUES GILBERT, Appellant, v. HENRY C. BURNSTINE et al., Individually and as Copartners under the Firm Name of BURNSTINE & GEIST, Respondents. Court of Appeals of New York. Argued October 21, 1930. Decided January 13, 1931. CITE TITLE AS: Gilbert v Burnstine *348 Arbitration Jurisdiction --- Public policy --- Contract by which parties thereto agreed to render themselves subject to foreign jurisdiction --- Public policy does not forbid --- Complaint alleging parties agreed to submit to arbitration under foreign law, that after notice to defendants such arbitration was had resulting in award, states cause of action therefor 1. If the fact be clear that in advance of any form of litigation or arbitration parties actually and intentionally contracted that in the event of such a proceeding they would render themselves subject to foreign process, public policy does not forbid. 2. A complaint alleging that plaintiff and defendants entered into a contract, by a clause of which they agreed that all differences arising thereunder should be arbitrated at London pursuant to the Arbitration Law of Great Britain; that differences having arisen, plaintiff served notice upon defendants at New York to concur in the nomination of an arbitrator; that on defendants' failure to comply proceedings were taken before an English court, notice having previously been served upon defendants in New York, resulting in the appointment of an arbitrator, who after further notice to defendants proceeded with the arbitration, resulting in an award against defendants; and further alleging that all proceedings were duly had in accordance with the English Arbitration Law, states a good cause of action for the amount of the award. Whether its allegations can be sustained must be determined on the trial of the action. Gilbert v. Burnstine, 229 App. Div. 170, reversed.

*349 APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1930, unanimously affirming a judgment in favor of defendants entered upon an order of Special Term granting a motion by defendants for a dismissal of the complaint. Eugene Untermyer, Laurence A. Steinhardt and Herbert B. Claster for appellant. The defendants have voluntarily agreed to be governed by the British law and to submit the differences in controversy to the British arbitration tribunal. The defendants are, therefore, bound by the award rendered thereon as in any other instance of a judgment or award rendered by default. (Norske Atlas Ins. Co. v. London General Ins. Co., 43 Times Law Rep. 541; Oppenheim & Co. v. Haneef Sahib, [1922] 1 App. Cas. 482; Matter of Berkowitz v. Arbib,

230 N. Y. 261; Mitsubishi Goshi Kaishi v. Carstens Packing Co., 200 Pac. Rep. 327; Matter of Bullard v. Grace Co., 240 N. Y. 388; Finsilver v. Goldberg, 253 N. Y. 382; Miller v. Smith, L. R. [1916] K. B. Div. 419; Hamlyn v. Bettely, 6 Q. B. 63.) Ample personal jurisdiction was secured over the defendants by service in the State of New York because the defendants agreed in advance to that method of service. (Finsilver v. Goldberg, 253 N. Y. 387; Elmendorf v. Harris, 23 Wend. 628; Wilson v. Seligman, 144 U. S. 41; Pennoyer v. Neff, 95 U. S. 714; Kerr v. Tagliavia, 101 Misc. Rep. 614; 186 App. Div. 893; 229 N. Y. 542; 254 U. S. 645; Feyerick v. Hubbard, 71 L. J. [N. S.] K. B. Div. 509; Copin v. Adamson, L. R. 9 Exch. 345; Roussillon v. Roussillon, 14 Ch. Div. 351; Teel v. Yost, 128 N. Y. 387; Tatum v. Maloney, 226 App. Div. 62; Guggenheim v. Wahl, 203 N. Y. 390; Vose v. Cockcroft, 44 N. Y. 415; Conde v. Schenectady, 164 N. Y. 258; Murdock v. Cincinnati, 44 Fed. Rep. 726; Matter of Teannakopoulos, 195 App. Div. 261.)Julius Henry Cohen, Kenneth Dayton, Burton A. Zorn and George H. Kenny for Corporation of the Chamber of *350 Commerce of the State of New York et al., amici curi. Although the notices from the plaintiff and arbitrator, and a summons from an English court relating to the appointment of an arbitrator were served upon defendants only in New York, but in full compliance with the provisions of English law, they are binding on defendants. (Matter of Berkovitz v. Arbib, 230 N. Y. 261; Schibsby v. Westenholz, L. R. 6 Q. B. 155; Rousillon v. Rousillon, 49 L. J. R. [N. S.] Eq. 338; Feyerick v. Hubbard, 71 L. J. R. [N. S.] K. B. 509; Vallee v. Dumergue, 4 Exch. 290; Teel v. Yost, 128 N. Y. 387; Mayer v. Raudenbush, 217 N. Y. 633; Albert Building & Loan Assn. v. Newman, 130 Misc. Rep. 624; Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Finsilver v. Goldberg, 253 N. Y. 382; Liverpool M. & G. Ins. Co. v. Bankers & Shippers Ins. Co., 24 Ll. L. Rep. 85; Copin v. Adamson, L. R. 9 Exch. 345; 45 L. J. R. [N. S.] Exch. 15; Merrifield, Ziegler & Co. v. Liverpool Cotton Assn., 105 T. L. R. 97; Norske Atlas Ins. Co. v. London General Ins. Co., 43 T. L. R. 541; Hamlyn & Co. v. Talisker Distillery, L. R. [1894] A. C. 202; Law v. Garrett, L. R. [1878] 8 Ch. Div. 26; Kirchner & Co. v. Gruban, L. R. [1909] 1 Ch. Div. 413; Austrian Lloyd S. S. Co. v. Gresham Life Assur. Soc., L. R. [1903] 1 K. B. 249; The Cap Blanco, L. R. [1913] Prob. Div. 130; Penn Copper Mines v. Rio Tinto Co., 105 T. L. R. 846; The Dawlish, [1910] Prob. Div. 339.) The defendants agreed that the process of the English court necessary to the effectuation of the arbitration agreement might be served upon them in New York and that they would thereby come within the jurisdiction of the English court. (Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Willesford v. Watson, L. R. 8 Ch. 473; Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199; Matter of American Eagle Fire Ins. Co. v. N. J. Ins. Co., 240 N. Y. 398; Matter of Interocean Mercantile Corp., 204 App. Div. 284.) The public policy of the State should support the effectuation of this agreement.*351 (Atlantic Fruit Co. v. Red Cross Line, 5 Fed. Rep. [2d] 218.)Henry C. Burnstine for respondents. A party is bound by the result of an arbitration not because he agrees to arbitrate but because he does arbitrate, either actually, whether voluntarily or involuntarily, or in legal effect, because ordered so to do by a power to which he is amenable. His refusal to arbitrate is final, unless changed by the compelling force of such power as alone can compel him because of his amenability to it, and its proper exercise to that end. (Matter of Bullard v. Grace

Co., 240 N. Y. 388; Wilson v. Winchester & P. R. Co., 82 Fed. Rep. 15; Ackerman v. Berriman, 61 Misc. Rep. 165; Matter of Berkovitz v. Arbib, 230 N. Y. 261; Mitsubishi Goshi Kaishi v. Carstens Packing Co., 200 Pac. Rep. 327; Norske Atlas Ins. Co. v. London General Ins. Co., 43 Times Law Rep. 541; Oppenheim & Co. v. Haneef Sahib, 1 App. Cas. 482; Matter of Eyre & Leicester Corp., [1892] 1 Q. B. 136; Hamlyn v. Betterly, 6 Q. B. 63; Matter of Smith & Service & Nelson & Sons, [1890] 25 Q. B. D. 545; Doleman v. Ossett Corp., 3 K. B. 257; People ex rel. Union Ins. Co. v. Nash, 111 N. Y. 310; Finucane Co. v. Board of Education, 190 N. Y. 76; Matter of Zimmerman v. Cohen, 236 N. Y. 19.) No jurisdiction of defendants was secured by delivery to them in New York of what within British territory was British process, nor did defendants agree in advance that such method should constitute service upon them, and it could not have given jurisdiction had they so agreed. (British Wagon Co. v. Gray, [1896] 1 Q. B. 35; Queen v. Justice of Essex, [1895] 1 Q. B. 38; Jones v. Owen, 5 Dowl. & Lowndes, 669; Foster v. Usherwood, 37 L. T. 389; Pennoyer v. Neff, 95 U. S. 714; D'Arcy v. Ketchum, 11 How. 165; Wilson v. Seligman, 144 U. S. 41; Teel v. Yost, 128 N. Y. 387; Schibsby v. Westenholz, L. R. [6 Q. B.] 155; Sudbury v. Ambi, 213 App. Div. 98; *352 Kerr v. Tagliavia, 101 Misc. Rep. 614; 186 App. Div. 893; 229 N. Y. 542; 254 U. S. 645.) Agreements of our citizens to submit future disputes to foreign tribunals of all kinds are still against our public policy and void. (Hilton v. Guyot, 159 U. S. 113; Johnston v. Compagnie Generale Trans-Atlantique, 242 N. Y. 387; Ritchie v. McMullen, 159 U. S. 235; Dunston v. Higgins, 138 N. Y. 70; Cowens v. Ticonderoga Pulp & Paper Co., 219 App. Div. 120; 246 N. Y. 603; Loucks v. Standard Oil Co., 224 N. Y. 199; Meacham v. Jamestown, F. & C. R. R. Co., 211 N. Y. 346; Matter of Berkovitz v. Arbib, 230 N. Y. 261; Matter of Inter-Ocean Food Products, 206 App. Div. 426; Kelvin Engineering Co. v. Blanco, 125 Misc. Rep. 728.) O'BRIEN, J. The complaint was dismissed on the merits and the judgment has been affirmed. The following facts are alleged in the complaint and admitted in the reply: In the year 1925, at New York, defendants, who are citizens and residents of this State, contracted in writing for the sale and delivery to plaintiff within the United States of a quantity of zinc concentrates. By a clause in the contract the parties agreed that all differences arising thereunder should be arbitrated at London pursuant to the Arbitration Law of Great Britain. Differences arose concerning an alleged failure to deliver in accordance with the terms of the contract and plaintiff served notice upon defendants at New York requesting them to concur in the nomination of a certain named individual or of some other resident of London as sole arbitrator. The notice also stated that in the event of defendants' failure to concur in the nomination of an arbitrator, plaintiff would apply to the High Court of Justice of England for such an appointment pursuant to the provisions of the Arbitration Act of 1889 (52 and 53 Vict., ch. 49). On defendants' failure to comply with this notice, plaintiff obtained from the King's Bench Division an order permitting him to issue a form of process which is described in the complaint as an originating *353 summons. This process was served upon defendants at New York and it directed them to appear

at a certain time and place in London before a master in chambers so that an arbitrator might be appointed. Defendants again failed to comply and thereupon the master appointed an arbitrator. He issued a notice which was served upon defendants at New York requiring them to furnish him at a specified time and place in London with all documents relevant to the matters in dispute. This notice, like the others, was ignored by defendants. The arbitrator, after causing a peremptory notice to be served upon them, also at New York, proceeded with the arbitration at London and made an award for > 46,000 against them. The complaint alleges that all these proceedings were duly had in accordance with the English Arbitration Act of 1889 and demands judgment for the amount of the award. Defendants admit their execution of the arbitration clause in the contract but deny that they ever made submission to arbitration and deny also that the proceedings were had in accordance with the English law. They defend this action on the ground that their agreement is contrary to public policy, that the service of the notices and the originating summons is void, that no court of England ever acquired jurisdiction of their persons or property, that the award was obtained without due process of law and that its enforcement would deprive them of property without due process of law. They argue that the sole question in the case is whether the British court acquired personal jurisdiction in the absence of personal service upon them within British territory. Settlements of disputes by arbitration are no longer deemed contrary to our public policy. Indeed, our statute encourages them. Contracts directed to that end are now declared valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract. (Arbitration Law; Cons. Laws, ch. 72, 2; Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261; *354 Matter of Zimmerman v. Cohen, 236 N. Y. 15.) Defendants' agreement without reservation to arbitrate in London according to the English statute necessarily implied a submission to the procedure whereby that law is there enforced. Otherwise the inference must be drawn that they never intended to abide by their pledge. They contracted that the machinery by which their arbitration might proceed would be foreign machinery operating from the foreign court. No other fair conclusion can be drawn from their language. Their contract constitutes something more than a simple executory one subject to breach. Not only under the foreign statute but also under our own arbitration law, it has become irrevocable in the sense that one of the parties without the consent of the other cannot deprive it of its enforcibility. (Matter of Zimmerman v. Cohen, supra.) In order, therefore, to determine the issue asserted by defendants that jurisdiction never was acquired, the question must be decided whether their agreement to submit to that jurisdiction is contrary to our public policy. Generally, extraterritorial jurisdiction of alien tribunals, however vigorously asserted, is denied by us. Of its own force, process issued from the court of a foreign state against our citizen and served upon him here is void. Without his consent he cannot be made subject to it, but whenever he agrees to be bound by its service, his conduct presents a problem. Contracts made by mature

men who are not wards of the court should, in the absence of potent objection, be enforced. Pretexts to evade them should not be sought. Few arguments can exist based on reason or justice or common morality which can be invoked for the interference with the compulsory performance of agreements which have been freely made. Courts should endeavor to keep the law at a grade at least as high as the standards of ordinary ethics. Unless individuals run foul of constitutions, statutes, decisions or the rules of public morality, why should they not be *355 allowed to contract as they please? Our government is not so paternalistic as to prevent them. Unless their stipulations have a tendency to entangle national or state affairs, their contracts in advance to submit to the process of foreign tribunals partake of their strictly private business. Our courts are not interested except to the extent of preserving the right to prevent repudiation. In many instances problems not dissimilar from the one presented by this case have been solved. Vigor has been infused into process otherwise impotent. Consent is the factor which imparts power. Text writers have discussed the subject and have concluded from the authorities that non-resident parties may in advance agree to submit to foreign jurisdiction. (Beale, The Jurisdiction of Courts over Foreigners, 26 Harvard Law Review, 193; Freeman on Judgments [5th ed.], vol. 3, p. 3053; Goodrich Conflict of Law, p. 141; Scott, Fundamentals of Procedure, pp. 3941.) The last named author, speaking of non-residents, states: Jurisdiction over the person of the defendant may be acquired by his consent. This consent may be given either before or after action has been brought. Jurisdiction is conferred when the defendant enters a general appearance in an action, that is, an appearance for some purpose other than that of raising the objection of lack of jurisdiction over him. A stipulation waiving service has the same effect. The defendant may, before suit is brought, give a power of attorney to confess judgment or appoint an agent to accept service, or agree that service by any other method shall be sufficient. The defendant in all these cases has submitted to the control of the state and of the court over him. These principles have long been announced by the courts. In Pennoyer v. Neff (95 U. S. 714, 735) the Supreme Court quoted with approval this language from Vallee v. Dumergue (4 Exch. 290): It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound *356 by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them. In Grover & Baker Sewing Machine Co. v. Radcliffe (137 U. S. 287, 298) the same court recognized its duty in a proper case to enforce such contracts. There defendant, a citizen of Maryland, before the beginning of any action, had authorized any attorney of any court of record in any State to confess judgment. Judgment by confession was entered against him in Pennsylvania by a prothonotary. The Supreme Court's refusal to sustain that judgment was based upon the fact that it had not been entered in accordance with the contract. Defendant had authorized attorneys, not prothonotaries, to represent him and he was held to have the right to insist upon the letter of the authority conferred by him. It was necessary that he be brought within the jurisdiction of Pennsylvania either by service of process, or by his voluntary appearance, or, as the court significantly added, the fact must

appear that he had in some manner authorized the proceeding. Wilson v. Seligman (144 U. S. 41, 44) follows the general rule that where a written notice is required it must be served personally upon a defendant within the territorial jurisdiction of the court by whose order or judgment personal liability is to be fixed, unless he has agreed in advance to accept, or does in fact accept, some other form of service as sufficient. In Hess v. Pawloski (274 U. S. 352) the Massachusetts statute authorizing the service of process other than personal service within the State upon a non-resident was sustained. The statute required that a copy of the process should be mailed by plaintiff to defendant without the State and that defendant's return receipt should be filed. In commenting upon this decision the Supreme Court in a later case (Wuchter v. Pizzutti, 276 U. S. 13, 19) emphasized that part of the statute which made necessary the written admission by defendant of the service of process outside the State. *357 This court in O'Tier v. Sell (252 N. Y. 400, 404) has accepted that doctrine. Public policy, therefore, would not forbid defendants to appoint an agent to accept service or to confess judgment in their behalf, nor does it after service forbid them in person to acknowledge receipt of it. If the fact be clear that in advance of any form of litigation or arbitration they actually intended to contract that in the event of such a proceeding they would render themselves subject to foreign process, the same policy ought to prevail. That such was their clear intent has been assumed at Special Term and the Appellate Division and the same conclusion now reached by us is plainly supported by the language of the agreement. We will not entertain the theory that, when they agreed to arbitrate at London according to the English Arbitration Act, they contracted with a reservation to refuse to place themselves on English soil and to resist the English law outside that territory. The complaint, after alleging the essential facts, further avers that all proceedings were duly had in accordance with the Arbitration Act of 1889. Merely as a pleading, it states a good cause of action and at this stage it should not be dismissed. Whether its allegations can be sustained must be determined on the trial of the action. The serious problem is whether the proceedings were in fact conducted according to the English statute as interpreted by the English courts. As so interpreted, was the extraterritorial service regularly effected? What is the practice in the English courts? What construction has been put upon the various rules of procedure? These questions raised by the answer must be decided to some extent as issues of fact, for in the ascertainment of foreign law such issues are involved. (Croker v. Croker, 252 N. Y. 24.) After evidence of the facts has been produced then it will be timely for the court to determine (Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 138) whether the English Arbitration Act, taken in connection *358 with the foreign rules of procedure, conforms or conflicts with our public policy. We do not say that the defendants in subjecting themselves to arbitration in accordance with the British Arbitration Act became bound to submit, not only to the requirements of that act, but to the entire corpus juris as developed by the British courts. We do say that there was an implied submission to the terms of the act itself,

and to any rules or procedural machinery adopted by competent authority in aid of its provisions. If the arbitration contract had provided that an arbitrator might be named by the London Chamber of Commerce upon notice to the parties, there would be little doubt that notice would be adequate though the defendants were not in Great Britain at the time of its transmission. We cannot say upon this record that any different conclusion ought to follow from notice and nomination at the instance of a judge. The case does not involve the question whether the defendants, staying out of the arbitration, may still challenge in this State the existence of a contract to arbitrate, or the breach of such a contract, unaffected by any adjudication pronounced by the British courts. The case involves no more than this, whether staying out of the arbitration, they are bound by an award, made after due compliance with the requirements of the procedural machinery established by the British statute, unless they are able to show that no contract has been made or broken. The judgment of the Appellate Division and that of the Special Term should be reversed and defendant's motion for judgment on the pleadings denied, with costs in all courts. CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur.

Judgments reversed, etc.