Tbe amount to be paid to tbe plaintiff for constructing tbe building and tbe balance, if any, still due and unpaid thereon are not subject to arbitration under tbe contract! Plaintiff sues, in part, to recover an alleged balance due. In this respect, in any event, tbe complaint is sufficient to repel tbe demurrer. Mills Co. v. Shaw, Comr. of Revenue, 233 N.C. 71, and cases cited.
But defendant insists that as to tbe repair bill the arbitration provisions of tbe contract prevail and preclude plaintiff’s right to resort to the courts until after tbe arbitration is bad as agreed by tbe parties. Its position in this respect is likewise untenable.
This is not a contract to arbitrate under tbe provisions of our Uniform Arbitration Act. That Act, G.S. Chap. 1, Art. 45, applies only to agreements to arbitrate controversies existing between tbe parties at tbe time of tbe execution of tbe agreement to adopt this method of settlement. Hence, decision here is controlled by our cases pertaining to contracts of this type to which tbe common law rule applies.
It is settled law in this jurisdiction, as in most others, that when a cause of action has arisen, tbe courts cannot be ousted of their jurisdiction *387by an agreement, previously entered into, to submit the rights and liabilities of the parties to arbitration or to some other tribunal named in the agreement. Kelly v. Trimont Lodge, 154 N.C. 97, 69 S.E. 764; Williams v. Manufacturing Co., 153 N.C. 7, 68 S.E. 902; Nelson v. R. R., 157 N.C. 194, 72 S.E. 998; Hargett v. DeLisle, 229 N.C. 384, 49 S.E. 2d 739; Brown v. Moore, 229 N.C. 406; Stephenson v. Ins. Co., 54 Me. 55; Blodgett Co. v. Bebe Co., 26 A.L.R. 1070; Anno. 26 A.L.R. 1077 and 135 A.L.R. 80; Anno. 47 L.R.A. ns 352; 3 A.J. 871 (See numerous eases cited in notes).
At any time before an award is rendered under the contract, either party may elect to breach his contract, 3 A.J. 891, and seek his remedy in the tribunal provided by law, Carpenter v. Tucker, 98 N.C. 316; Williams v. Manufacturing Co., supra; Tarpley v. Arnold, 226 N.C. 679, 40 S.E. 2d 33; 3 A.J. 871, and “where the right of action is complete without an arbitration, an agreement is not taken out of the scope of the rule by an express stipulation that suit shall be subject to the condition that arbitration first be had.” 3 A.J. 872.
The rule comes to this: The agreement of the parties to arbitrate is a contract. The relation of the parties is contractual. Their rights and liabilities are controlled by the law of contract. A breach of the contract may give 'rise to a cause of action for damages, but the contract itself is not a defense against a suit on the cause of action the parties agreed to arbitrate. Carpenter v. Tucker, supra; Sprinkle v. Sprinkle, 159 N.C. 81, 74 S.E. 739. In an action on the contract the courts will not decree specific performance of the agreement. Neither will they, by indirection, compel specific performance by refusing to entertain a suit until after arbitration is had under the agreement.
It is not amiss to note here that the courts uniformly recognize the difference between an agreement to arbitrate and a submission consummated by an award. After the agreement has been consummated by an award there can be no revocation. Nelson v. R. R., supra; Williams v. Manufacturing Co., supra; 3 A.J., sec. 41, p. 870. The award is binding on the parties and will be enforced.
It follows that the executory agreement to arbitrate controversies which might arise in the course of the fulfillment of the contract between the parties is no bar to this action.
The judgment overruling the demurrer is
Affirmed.