
    J. A. LONG v. CLEMMIE CROMEN et al.
    (Filed 11 May, 1921.)
    Arbitration and Award — Limit as to Time — Courts—Extension of Time.
    Where, pending the action, the parties thereto, ecu curia, enter into an agreement to arbitrate so as to conclude them all, and therein specifically state the time limit in which it was to be consummated, and that it was for the purpose of having a judgment signed by the judge at a certain term of the court upon the award entered, the court is without authority at the term stated, upon his finding that one of the selected arbitrators refused to serve, to order that the case be referred again to the same-arbitrators to act under the agreement, fixing the term for final disposition, and refusing a motion of a party to place the case again on the trial docket.
    Appeal by plaintiff 'from Bay, J., at November Term, 1920, of Stoees.
    Civil action to recover damages for an alleged breach, of a written contract to convey land.
    After the institution of this suit, and while the same was pending, complaint and answer having been filed, the parties voluntarily entered , into the following agreement:
    In this cause it is agreed between the parties that the whole matter in dispute, law and fact, be submitted to W. J. Wall, N. S. Jones, and Luther Baker as arbitrators.
    The award of said arbitrators, or a majority of them, to be final, and when filed to become a rule of court. The parties to this instrument hereby further agree that the judge of the Superior Court shall sign a judgment at the next term based upon said award.
    They hereby further agree to execute bond in the sum of $2,000, payable, to the adverse party, the stipulations of said bond being that they will abide the award of the arbitrators and the judgment of the court rendered thereon.
    It is further agreed that 29 September be fixed for taking testimony before the arbitrators herein named, to the end that the report may be filed in time for a judgment to be rendered thereon at the next term of the Superior Court of Stokes County, which convenes 1 November, 1920.
    It is further agreed that in the event the arbitrators desire to view the land in person, before rendering their award, they are by this agreement permitted to do so. It is further agreed that, notwithstanding what the award may be, each party agrees to pay one-half of the cost of the arbitration. J. A. LoNG, [seal]
    
      Plaintiff.
    
    Clemmie CeomeR, [seal]
    Joseph H. Oeomee, [seal]
    Witness: W. H. Beoxebdite. Defendants.
    
    
      In an effort to carry out said agreement, tbe parties and tbeir counsel met on two different occasions before tbe November Term, 1920; bnt at botb times tbey were nnable to go into a bearing on account of tbe absence of one of tbe arbitrators. Whereupon, at tbe said November term tbe plaintiff gave notice of withdrawal of bis consent to arbitrate, and moved to have tbe case set for trial at tbe next term of the Superior Court. Tbis motion was overruled; and tbe court, ex mero motu, 'entered tbe following order:
    “Tbis cause coming on to be beard upon motion of plaintiff to strike out tbe agreement to submit tbe matter in controversy to arbitration and place tbe cause upon-tbe docket for trial at tbe next term of tbe court, and it appearing from the agreement to arbitrate tbe matters in controversy between tbe parties tbat £the award of said arbitrators, or a majority of them, to be final, and when filed to become a rule of tbe court.’
    “The court concludes from tbis clause in tbe agreement tbat tbe agreement to arbitrate the matters in controversy was consented to by tbe parties under tbe supervision of tbe court, and it appearing tbat tbe arbitrators have failed to bear tbe matter and make any award in tbe case, and tbe plaintiff stating in open court tbat be withdraws bis consent given in tbe order to arbitrate tbe matter, and refuses tbe right to allow tbe matter to be proceeded with, it is ordered by tbe court tbat tbe motion tbat tbe case be upon tbe trial docket of tbe calendar to tbe next term of tbe court be disallowed, and tbat tbe case be beard and determined by tbe arbitrators hereinbefore selected by tbe parties and named in tbe order, tbe court finding as a fact tbat one of tbe arbitrators refuses to serve as such.
    . “And tbat a copy of tbis order be certified by tbe clerk of tbis court to W. J. Wall, N. S. Jones, and Luther Baker, arbitrators, 'to proceed to bear and return-the matter, and to return tbe award and further findings to tbe next term of tbis court.
    “To tbis order and findings tbe plaintiff gives notice of appeal in open court. Notice waived. Appeal bond fixed in tbe sum of $35, adjudged sufficient.
    “The record proper, together with a copy of tbe agreement to arbitrate and a copy of tbis order to constitute tbe case on appeal to tbe Supreme Court. ' J. Bis Rat,
    
      Judge Presiding.”
    
    To tbe foregoing order plaintiff excepted and appealed.
    
      McMichael & J ohnson for plaintiff.
    
    
      J. D. Humphreys and N. 0. Petree for defendants.
    
   Stacy, J.

It was stated upon tbe oral argument tbat while tbe agreement to arbitrate commenced witb tbe words, “In tbis cause it is agreed,” yet as a matter of fact said articles of agreement were never filed as a part of tbe record in-tbe Superior Court. It also appears, from tbe face of tbe instrument, tbat tbe award of tbe arbitrators, or a majority of them, was to become a rule of court only when filed, and then it was to be a final settlement of tbe whole matter in dispute. And further, tbe date for taking testimony before tbe arbitrators was fixed “to the' end-that tbe report (award) might be filed in time for a judgment to be rendered thereon at tbe next term of tbe Superior Court of Stokes County, which convenes 1 November, 1920.” Thus it would seem tbat tbe agreement to arbitrate was made ex curia and purposely limited as to time. Under these circumstances we think bis Honor was without authority to enter tbe order which forms tbe basis of plaintiff’s appeal.

Tbis is not a suit to enforce an arbitration agreement, but to recover damages for an alleged breach of contract to convey land. Tbe agreement to arbitrate was entered into pendente lite in an effort to expedite a bearing and to end tbe litigation. Failing to accomplish tbis result within tbe specified time, both parties were at liberty to treat the instrument as no longer binding and at an end.

"We refrain from entering upon a discussion of tbe principles of arbitration and award, which were argued on tbe bearing, as we do not think they arise upon tbe record in tbis case. Tbe order directing tbe arbitrators to proceed will be set aside, and the parties will take such further action as they may be advised.

Error.  