dissenting.
This case illustrates the wisdom and soundness of the Pennsylvania rule on submission agreements, which is discussed and quoted in the majority opinion from 3 Am. Jur., Arbitration and Award, § 61, p. 893, and the fallacy of following a rule simply because it has been approved by a greater number of courts. Inasmuch as the question presented is of first impression, in this Court, I would adopt the Pennsylvania rule and apply its principles to the facts in this case.
The dominant purpose for which Cabell and King arranged a conference with Beale was to obtain possession and use of the papers owned by King and held by Beale. King acknowledged that he owed *811Beale a debt for professional services and the only question in dispute was the amount. King claimed that the value of the services was not more than $150. Beale claimed it was $3,000 and that he had a lien upon the papers as security for the payment of his debt. He was unwilling to surrender his security unless the debt was paid or satisfactory arrangements made for a settlement. In compromise of the respective contentions, Beale agreed to surrender possession of the papers if arrangements were made to determine promptly by arbitration the amount of the indebtedness. This was done.
Beale fully performed all the terms and conditions undertaken by him in the arbitration agreement. He surrendered his security for the payment of the debt. King obtained the main purpose for which he executed the agreement, namely, the possession of the papers which he used successfully in the litigation in which he was then involved. Thereby, Beale forever lost the security for the payment of his debt and King gained benefits that substantially enhanced the value of his estate. Neither party can now be restored to his status quo. This makes the agreement much more than a naked power to arbitrate. The ends of justice can be attained only by holding that King had no right to revoke and that his death conferred no additional right upon his personal representative.
In 6 C. J. S., Arbitration and Award, § 33, p. 174, it is said: “The general rule as to the right to revoke a common-law submission to arbitration is sometimes limited to cases involving a naked power to refer a subject of controversy to arbitration, and it is held that, where an agreement partakes of the nature of a contract whereby important rights are gained and lost reciprocally, and the submission is the moving consideration of these acts, the submission can be revoked only by mutual consent. Such agreements and compromises, it is said, should be faithfully adhered to, unless there has been fraud, corruption, or gross misbehavior by the arbitrators.”
The declaration in the majority opinion that the judgment in favor of the administratrix is “without prejudice to the right of the appellee, Beale, to proceed against the administratrix of the estate of the decedent for the recovery of the fair value of the services rendered by him to the decedent,” is in my opinion of no benefit to Beale. The last item of his account against King was made on July 26, 1943. The arbitration agreement was signed on June 21, 1948, and King’s personal representative qualified on April 1, 1949. Beale’s right of action for the recovery of the value of the services rendered arose prior *812to King’s death. Code, § 8-13 limits the right to bring any such action to five years from the qualification of the personal representative. Code, § 26-5 requires a personal representative to plead the statute of limitations in any suit or action brought against his decedent’s estate. Confronted with these facts I am unable to see how Beale can hope to institute and maintain successfully a separate and independent action to recover the fair value of his services. Furthermore, if death revoked by operation of law the arbitration agreement as held by the majority there can be no recovery of damages for its breach.
It seems to me that the inevitable and final result of the majority decision is that King’s estate has been enhanced both by the value of the legal services performed by Beale and the value of the use of the papers obtained from him pursuant to the arbitration agreement, and conversely, Beale has irretrievably lost the value of the legal services for which he had adequate security until he surrendered his retaining lien in consideration for King’s agreement to submit their differences to arbitration.
I would affirm the judgment of the trial court.