Williams v. Branning Manufacturing Co.
68 S.E. 902
N.C.
1910
Check Treatment
Brown, J.

It is unnecessary to review the conclusions of the Superior Court tbat the provision in the contract agreeing to submit all matters of difference to arbitration is no bar to tbis action, for the reason tbat the plaintiffs and defendant did voluntarily submit sucb matters to arbitration in manner and form as provided in the contract and the arbitrators in due time rendered their award. It is common learning tbat a valid award operates as a final and conclusive judgment, as between the parties to the submission, or witbin the jurisdiction of the arbitrators, respecting all matters determined and disposed of by it.

But it is contended tbat the fact tbat a summons in tbis action was issued some days before the rendering of the award revoked the submission, and deprived the arbitrators of the right to make an award.

No other form of revocation is contended for.

At common law a submission might be revoked by any party thereto at any time before tbe award was rendered. Bacon Abridgment, Arb. B., Comyns Dig., Arb. D., 5; Vinyor’s case, 8 Coke, 82.

Some courts of tbis country have held to tbe contrary (Berry v. Carter, 19 Kan., 135, and cases cited), but tbis Court has followed tbe doctrine of tbe common law. Tyson v. Robinson, 25 N. C., 333; Carpenter v. Tucker, 98 N. C., 316.

The revocation to be effective must be express unless there is a revocation by implication of law, and in case of express revocation, in order to make it complete, notice must be given to tbe arbitrators. It is ineffective until tbis has been done. Allen v. Watson, 10 Johns, 205; Brown v. Leavitt, 26 Maine, 251; Morse on Arb. and Award, p. 231; Vin Ab., Authority E., 3, 4; Vinyor’s case, supra, 2 Am. & Eng., 600.

*11 It is contended that commencing an. action is a revocation by legal implication. Sncli revocations arise from the legal effect of some intervening happening after submission, either by act of God or caused by the party, and which necessarily puts an end to the business.

The death of a party, or arbitrator, marriage of a feme sole, lunacy of a party, or the utter destruction and final end of the subject matter, are of this description. But whether the bringing of an action for the subject matter of an arbitration after submission and before award is an implied revocation, is a matter about which the courts differ.

In New York it is held that it is no revocation in law (Lumber Co. v. Schneider, 1 N. Y. Supp., 441; Smith v. Bard, 20 Barb, 262). To same effect are the decisions in New Jersey and Vermont (Knores v. Jenkins, 40 N. J. L., 288; Sutton v. Tyrrell, 10 Vt., 91). The courts of Kentucky, Illinois, Georgia and New Hampshire hold the contrary. (Peters v. Craig, 6 Dana, 307; Paulser v. Manske, 24 Ill. App., 95; Leonard v. House, 15 Ga., 473; Kimball v. Gilman, 60 N. H., 54). The conclusion of Judge Gollamer in the Vermont case is that “The entry and continuance of an-action was, obviously, not an express revocation, nor was it such an act as put an end to the subject matter of the submission nor did it prevent the arbitration from proceeding with effect. It occasioned the defendant’no cost, and, indeed, it Avas no more than an ordinary act of caution to keep the action in existence should the opposite party revoke or decline to attend. This, then, was not a revocation in law.” Nevertheless it is plainly deducible from all the cases that the action when commenced must cover the subject matter submitted to arbitration; otherwise, it cannot be construed as a revocation or notice to the party or to the arbitrators.

In the case at bar the summons was issued some days before the award was made, but the complaint was not filed until a year after. The summons gave no indication as to the character of the action except that it was a civil action.

Until a complaint is filed the defendant has no legal notice of the cause of action and the arbitrators had a right to proceed with the pending arbitration and to render their award. Assum *12 ing that the bill of particulars furnished upon defendant’s demand is notice of the character of the action, that was not furnished until after 1 August, 1908, several months after the award had been rendered.

It is further contended that the award is not warranted by the terms of submission. According to the written contract and the terms of the submission the purpose of the award was to ascertain the damages accruing by reason of — -“1. The percentage of miscuts and stained lumber. 2. As to excess cost of railroading. 3. As to excess cost of handling lumber on the yard. 4. Are J. T. "Williams & Bro. responsible for fire which occurred last fall, supposedly originating from sparks from locomotive No. 7? The above items cover all disputes and contentions under said contract to date.”

In their written award the arbitrators appear to have carefully confined themselves to the questions submitted and to have confined their findings to the four matters in dispute. But it is unnecessary to discuss that contention further, as it is expressly admitted in the case agreed that the arbitrators, on 25 January, 1907, rendered their award, “passing on the matters submitted to them.”

In view of this admission in the record it is not now open to plaintiff to attack the award.

The judgment of the Superior Court upon the “case agreed” i's

Reversed.