Tarpley v. . Arnold

Winborne, J. Tbe parties in briefs filed in tbis Court appear to be in agreement that tbe method of arbitration adopted by them in this case is in accordance with procedure at common law, and not with that prescribed in tbe uniform arbitration act, G. S., 1-544, et seq. Hence, tbe motion of plaintiff to strike tbe report of the_ arbitrator must be considered in tbe light of pertinent common law. Plaintiff contends tbat, by bis acceding to tbe request of tbe arbitrator to be relieved of making a final decision, tbe agreement to arbitrate was revoked, and tbat thereafter the arbitrator bad no authority to make an award. On tbe other band, defendants contend tbat they have not “consented to tbe resignation of tbe arbitrator or to any modification or abrogation of tbe arbitration agreement,” and tbat without their consent, the agreement may not be modified or set aside. In respect to these contentions, tbe case of Williams v. Mfg. Co., 153 N. C., 7, 69 S. E., 902, is pertinent. There in respect to tbe subject of revocation of agreement to arbitrate, Brown, J., writing for tbe Court, stated: “At common law a submission might be revoked by any party thereto at any time before tbe award was rendered. . . . Some courts of tbis country have held to tbe contrary . . . but tbis Court has followed tbe doctrine of tbe common law,” citing Tyson v. Robinson, 25 N. C., 333, and Carpenter v. Tucker, 98 N. C., 316, 3 S. E., 831. And, continuing, “Tbe 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 this has been done.” Applying tbis doctrine to tbe case in band, plaintiff was entitled to make proof of tbe facts set forth as ground for bis motion to strike tbe report of tbe arbitrator, and, if tbe facts alleged be found to be true, to have bis motion allowed. Hence, in refusing to admit and to consider tbe proof offered, there is error in overruling tbe motion. Therefore, tbe judgment rendered will be set aside, and tbe case remanded for further consideration in tbe light of tbis opinion. Error and remanded.