#### J. W. TARPLEY v. D. R. ARNOLD and Wife, ANNIE ARNOLD.

(Filed 6 November, 1946.)

Arbitration and Award § 3—

Upon motion to set aside an award made pursuant to tbe common law procedure for arbitration, movent is entitled to introduce evidence that prior to the filing of the award the arbitrator wrote movent’s attorney expressing a desire to resign, and that the attorney, with movent’s approval, wrote the arbitrator accepting the resignation, since if the facts should be found in accordance therewith, movent would be entitled to the relief, and refusal to consider such proof is reversible error.

Appeal by plaintiff from Harris, J., at June Term, 1946, of Wake.

Civil action to recover possession of land.

Plaintiff alleges in bis complaint tbat be is tbe owner in fee of a certain tract of land in Wake County, North Carolina, and tbat defendants bave entered into tbe unlawful possession of and wrongfully withhold a part of it, to bis damage.

Defendants, answering, deny tbe material allegations of tbe complaint, and assert ownership of tbe land of which they are in possession.

After tbe pleadings were filed, and on 12 May, 1945, plaintiff and defendants entered into a written agreement of arbitration to submit tbe matter in difference between them to certain named arbitrator, by whose findings they “will' be forever bound,” and on whose report and survey or map judgment may be entered, etc. Tbe written agreement was signed and acknowledged by tbe parties and consented to by their respective attorneys of record.

Tbe record shows tbat report of tbe arbitrator dated 1 February, 1946, was filed 10 April, 1946, and tbat on 12 April, 1946, plaintiff filed in court a motion to strike tbe report from tbe record, and for tbe action to be calendared for trial before a jury. Tbe ground upon which tbe motion is based is tbat tbe arbitrator, in letter to and received by attorney for plaintiff on 6 March, 1946, bad stated tbat be bad found tbat it is not possible for him to decide definitely in his mind the question of tbe property line between plaintiff and defendants and would be glad (quoting bis language), “if you relieved me of tbe responsibility of making a final decision,” to which on same day the attorney for plaintiff, with tbe consent of plaintiff, wrote to tbe arbitrator tbat “in deference to your request and with much regret, we hereby accept your resignation as tendered today.”

When tbe motion of plaintiff came on for bearing in Superior Court on 29 June, 1946, plaintiff tendered bis affidavit in substantiation of tbe motion. Defendants objected to tbe introduction of tbe affidavit. Tbe objection was sustained, and plaintiff excepted. And tbe court overruled tbe motion and plaintiff excepted.

*680Thereupon, tbe court entered judgment on tbe said report of tbe arbitrator in favor of defendants.

Plaintiff excepted, and appeals to Supreme Court and assigns error.

Albert Doub and Wilson & Bickett for plaintiff, appellant.

Bunn & Arendell for defendants, appellees.

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.