Tbе amount to be paid to tbe plaintiff for constructing tbe building and tbe balance, if any, still due and unpaid thereon are not subject to arbitration under tbe contract! Plaintiff sues, in pаrt, to recover an alleged balance due. In this resрect, in any event, tbe complaint is sufficient to repеl tbe demurrer.
Mills Co. v. Shaw, Comr. of Revenue,
But defendant insists that as to tbe repair bill the arbitration provisions of tbe contract prevail and prеclude plaintiff’s right to resort to the courts until after tbe arbitration is bad as agreed by tbe parties. Its position in this respect is likewise untenable.
This is not a contract to arbitrate under tbe provisions of our Uniform Arbitration Act. That Act, G.S. Chap. 1, Art. 45, аpplies only to agreements to arbitrate contrоversies existing between tbe parties at tbe time of tbe execution of tbe agreement to adopt this method of settlement. Hence, decision here is controlled by оur cases pertaining to contracts of this type to which tbe common law rule applies.
It is settled law in this jurisdiction, аs in most others, that when a cause of action has arisеn, tbe courts cannot be ousted of their jurisdiction
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by an agrеement, previously entered into, to submit the rights and liabilities of thе parties to arbitration or to some other tribunal namеd in the agreement.
Kelly v. Trimont Lodge,
At any time before an award is rendered under the cоntract, either party may elect to breach his contract, 3 A.J. 891, and seek his remedy in the tribunal provided by law,
Carpenter v. Tucker,
The rule comes to this: The аgreement of the parties to arbitrate is a contrаct. The relation of the parties is contractual. Thеir rights and liabilities are controlled by the law of contract. A breach of the contract may give 'rise to a cаuse of action for damages, but the contract itself is not a defense against a suit on the cause of action the parties agreed to arbitrate.
Carpenter v. Tucker, supra; Sprinkle v. Sprinkle,
It is not amiss to note here that the courts uniformly recognize the difference between an agreement to arbitrate and a submission consummated by an award. After thе agreement has been consummated by an award therе can be no revocation. Nelson v. R. R., supra; Williams v. Manufаcturing Co., supra; 3 A.J., sec. 41, p. 870. The award is binding on the parties and will be enforced.
It follows that the executory agreement to arbitrate controversies which might arise in the course of the fulfillment of the contract between the parties is no bar to this action.
The judgment overruling the demurrer is
Affirmed.