N. P. Sloan Co. v. Standard Chemical & Oil Co., No. 3249

No. 3249 | 5th Cir. | Nov 8, 1918

WALKER, Circuit Judge

(after stating the facts as above). The only ground stated in the demurrers to counts 5 and 6 of the complaint as amended was that—

“The alleged award therein counted on is null and void, because the alleged agreement to refer said matters to said arbitration was null and void as an attempt to oust the jurisdiction of the courts.”

That demurrer raised no question of the sufficiency of the allegations of the complaint as to the existence of a difference or dispute between tire parties or as to the submission by them of that dispute or difference to the committee mentioned for arbitration. Nor did the demurrer question the sufficiency or validity of the alleged award upon any ground other than that the alleged arbitration agreement was legally invalid, with the result that any award made in pursuance of it is without binding or enforceable effect.

It may be assumed that the pleaded arbitration agreement was not a binding or enforceable one, and that its existence prior to the award constituted no obstacle to a resort to the courts by either of the parties fo it for the settlement of any difference or dispute arising between them. Though a submission to arbitration in pursuance of the agreement was revocable at any time before the making of an award, it does not follow that an award made under an unrevoked submission pursuant to the agreement and the submission is without binding effect. After an agreement to arbitrate has been executed or consummated by the making of an award following a submission by both parties, which was unrevoked when the final action of the arbitrators was taken, the award so made is not deprived of binding effect by the circumstance that before it was made the arbitration agreement did not stand in the way of either party resorting to the courts for the settlement of the controversy. Where parties submit matters in controversy to arbitration, and an award is made pursuant to the agreement of submission, such award is final and binding on the parties, unless the arbitrators are guilty of fraud, partiality, or other improper conduct in making it. Gardner v. Newman, 135 Ala. 522" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/gardner-v-newman-6519774?utm_source=webapp" opinion_id="6519774">135 Ala. 522, 33 South. 179; Williams v. Branning Mfg. Co., 154 N. C. 205, 70 S. E. 290, 47 L. R. A. (N. S.) 337, and note; 5 Corpus Juris, 43, 163; 2 R. C. L. 366. Neither of the two counts in question was subject to objection on the ground stated, in the demurrer.

Because of the error committed in sustaining the demurrer, the judgment is reversed.