Hicks v. . Sykes

Per CueiaM. The alleged award of the arbitrators bears date 10 March, 1928. The summons in the action was issued 29 March, 1928. The alleged arbitration, therefore, was not made a rule of court in an action pending between the parties at the time they agreed to the arbitration. The plaintiff did not sue for a breach of the alleged arbitration and the defendants do not rely upon it as an estoppel against the plaintiff. The action is prosecuted for alleged breach of the contract ; and in their answer the defendants say that because the plaintiff refused to abide by the award their acceptance of it was withdrawn. The plaintiff had no legal right, after repudiating the arbitration and bringing suit on the contract, to abandon his alleged cause of action, under the protest of the defendants, and to hold them to the award. The situation is similar to that which arose in Carpenter v. Tucker, 98 N. C., 316, in which it is said that as the plaintiff therein had agreed to arbitrate the matters in dispute, and had afterwards refused to comply with his agreement, the breach, under proper conditions, might be regarded as a cause of action, but not one to be set up as a defense. The controversy must be determined upon the issues which arise on the pleadings. There was error in holding that the parties are bound by the terms of the alleged award. In the latter respect the order is modified. Modified and affirmed.