Andrews v. . Jordan

ClaeksON, J. The defendants’ exceptions and assignments of error relied on, were as follows: “His Honor erred in refusing to set aside *623 the award of the arbitrators .on motion of defendants upon the ground that the award was not made and, or filed within 60 days from the date of the agreement to arbitrate, no order or agreement having been made extending the time for making or filing such award. . . . That his Honor erred in entering judgment upon the award, for that said award was not made within 60 days from the date of the agreement to arbitrate and no order or agreement was made in writing extending the time for making such award.” These exceptions and assignments of error cannot be sustained. The defendants contend that the arbitration was governed by Public Laws, 1927, chapter 94 — the Uniform Arbitration Act. N. C. Code, of 1931, annotated (Michie), Art. 43A, sec. 898(a), et seq. It provides: Section 898(h) : “If the time within which the award shall-be made is not fixed in the arbitration agreement, the award must be made within sixty days from the time of the appointment of the arbitrators, and an award made after the lapse of sixty days shall have no legal effect unless the parties extend the time in which said award may be made, which extension or ratification shall be in writing.” Defendants contend that the above section applies to the present reference and arbitration. We cannot so hold. Section 898(a) of the above act is as follows: “Two or more parties may agree in writing to submit to arbitration, in conformity with the provisions of this article, any controversy existing between them at the time of the agreement to submit. Such an agreement shall be valid and enforceable, and neither party shall have the power to revoke the submission without the consent of the other party or parties to the submission save upon such grounds as exist in law or equity for the rescission or revocation of any contract.” The parties to this controversy did not submit it to be arbitrated “in conformity with the provisions of this article.” The action was pending in the Superior Court and referred by the court to a referee when the agreement to arbitrate was entered into. If defendants intended that the Uniform Arbitration Act and its provisions should apply, it should have been written in the agreement to arbitrate, as the case was then pending in the Superior Court before a referee. C. S., 572, 573. McNeill v. Lawton, 97 N. C., 16; N. C. Practice & Procedure in Civil Cases (McIntosh), p. 558, et seq., at p. 559. (3) — Deference to arbitration. In Hill v. Insurance Co., 200 N. C., 502 (510), speaking to the subject : “This arbitration is under the terms of the policy. It may be noted that Laws, 1927, chap. 94, makes provision for arbitration by agreement of parties.” It may be noted that the report of the arbitrators in part, is as follows: “That the referee and arbitrators, after many hearings, at all *624 of which said parties were represented either in person or by attorney, and that on the 7th and 8th days of August, 1933, a final hearing of said cause was had in the town of Sparta, North Carolina; at which the following parties were present: J. K. Andrews, L. R. Jordan, Eugene Transou, Russell Whitener, attorney for J. K. Andrews, and J. H. Folger, attorney for L. R. Jordan, and after a full hearing and careful investigation the referee and arbitrators find as a fact, that J. D. Andrews is entitled to recover of L. R. Jordan as principal, and Eugene Transou, as surety, the sum of $2,762.25, with interest on the same from 28 August, 1928, until paid.” The court below in the judgment set forth the following: “And it also appearing to the court that numerous hearings were had before said referee and arbitrators at which hearings the plaintiff and defendants were represented in person and by attorney, and that the time of said hearings were mutually agreed upon by the parties to said action.” The defendants, when notified of the hearings, were present in person and by attorneys and took part in the hearings and made no objection to the time, which was mutually agreed upon. They thereby waived any right to attack the award. Commercial Arbitration and Awards (Sturges, 1930), at p. 524-5, says: “It is fully recognized in submissions generally that an extension agreement may be implied as well as expressed. Thus, if the parties participate in the arbitral hearing without objection to the point that a time limitation has expired it will be held generally that they have thereby waived the time provision. More frequently, perhaps, this proposition is stated as being a waiver by the party who objects to the conclusiveness or enforceability of a delayed award after he has so participated in an arbitration. Such conduct has been held effective as a waiver of a time limitation in a submission agreement which was under seal.” Nelson v. R. R., 157 N. C., 194 (202-3). In Morse on Arbitration and Award, p. 104-5, we find: “It will be observed that the matter of the time when the objection is to- be taken is of the essence of this matter of waiver. The rule is that it must be taken by the party aggrieved so soon as he becomes aware of the existence of the fact creating the incompetency. It is likened to the case of challenging a juror. The party will not be allowed to lie by after he has attained the knowledge, and proceed with the hearing without objection, thereby accumulating expense and taking his chance of a decision in his favor, and then, at a later stage, or after a decision has been, or seems likely to be, rendered against him, for the first time produce and urge his objection.” We see no error in the judgment of the court below. Affirmed.