Metcalf v. . Guthrie

Smith, C. J. (after stating the facts). The reference to arbitrators, was not made under a rule entered in the cause, so that judgment could be rendered on the award, and enforced as in .other cases — Simpson v. McBee, 3 Dev., 532; Moore v. Austin, 85 N. C., 179 — but was under an outside and independent arrangement, substituted in place of the action, to settle and dispose of one and the same controversy. The disavowal of the agreement, and refusal to abide by the award on the part of the defendant, furnished a new cause of action for the recovery of damages at law, and relief could have been obtained in equity, ..by a decree for specific performance, in adjusting the boundary. Thompson v. Deans, 6 Jones’s Eq., 22; Crawford v. Orr, 84 N. C., 246. But in either case, the remedy must be sought in a new action, because the right to sue, arises out of a transaction subsequent to the institution of the present suit. It could not be obtained by a supplemental or amended complaint, for the obvious reason that the cause of action did not then exist. Had the award disposed of the subject matter of the action, and the plaintiff proposed to continue its prosecution, it would have been a defence, brought forward by answer, as if payment, release or other after occurring defence were to be set up. The proceedings in reference to the award, have no proper place in the cause, and the new issues raised in the supplemental complaint, which alone were submitted to and passed on by the jury, were wholly irrelevant •to the cause of action existing when the suit was brought. Had -the award been under a rule of Court, the motion for judgment •thereon might have been resisted upon such grounds as impeach its validity, and met by a counter-motion to set it aside for un *451 ■certainty in its terms — Duncan v. Duncan, 1 Ired., 466 — insufficiency in not disposing of all matters referred — Cullifer v. Gilliam, 9 Ired., 126 — excess of authority, incapable of being separated from that which was referred — Cowan v. McNeely, 10 Ired., 5 — and for other adequate causes. The proper issues were such as arose out of the controverted facts, other than those in the supplemental complaint, and the answer to its allegations — for unless the award could be made effectual in determining the action, it must proceed as .if no arbitration had taken place. It cannot aid the action, except, if at all, as •evidence upon proper issues, referable to the commencement of the action. The contract to refer is executory, and may be the basis of a new action, but, not being made under the jurisdiction ■of the Court, it cannot be enforced as a rule, in determining the present action, unless as a settlement to put an end to it. Let this be certified. Error. Reversed.