
    Cox v. Giddings.
    If the provisions of the act to settle disputes by conciliation and arbitration bo not observed the award will not have the effect of a statutory award. (Koto 8.)
    
      Quere? Whether tho aot to settle disputes by conciliation and arbitration (Ilart. Dig., p. Sil) embraces eases in which suit has been brought. However that may he it is clear that if the directions of the statute be not pursued the jurisdiction of tiie court will not be divested.
    where after suit there was an agreement to arbitrato which did not conform to the statute, and afterwards there was an agreement to go to trial at the. next term, which was done, and the party in whose favor the award liad gone did not oiler the award in evidence, it was held that the award had been waived.
    Construction of an agreement that the testimony then on file should be read at the trial, subject to all legal exceptions, not going to tho form and manner of tailing.
    Appeal from Washington. Tlie. appellee sued the appellant for tho proceeds of a league of land which (lie hitter liad sold for the former as his agent. The defendant pleaded that lie was not indebted and that lie had fully accounted to the defendant.
    After tlio cause was at issue the parties entered into an agreement in writing to arbitrate, reserving tlie right of appeal, in which they.appointed four arbitrators by name and stipulated that any three of them should be authorized to act, and in case they should fail to act the. award was to be made by such arbitrators as might he agreed upon by the parlies, the award to bo made the judgment of the court. 'The case was continued. 'The controversy was submitted to the arbitrators named, three of whom made an award of $099.G2 in favor of tlie plaintiff, wlio thereupon gave notice of appeal. On tlie fourth day of the term of tlie court next succeeding- he moved the court to set aside the award. There did not appear to have been any action of the court upon the motion, nor did any further notice appear to have been taken of the award. The case was continued by consent, and an agreement was entered into by the parties for a trial at the next term. The case was accordingly tried at the succeeding- term. The plaintiff offered in evidence a certified copy from the records of Harris county of an agreement between the defendant and a commercial firm in tlie city of Houston concerning the terms of the sale of the laud, iu which, iu consideration of an amount credited to the defendant by the firm lie undertook to settle for them an indebtedness of theirs to a linn iu tlie city of New York. The copy of this agreement was attached to interrogatories propounded by the plaintiff to a witness to the agreement for the purpose of proving its execution. Tlie interrogatories with tlie copy of the agreement annexed were filed June loth, 1850, with the papers in the case, but no further steps were taken to procure answers to the same.
    The defendant objected to the reading of tlie paper in evidence. The plaintiff then referred to an agreement between the parties to the suit, filed oil the 22d day of March, 1351, by which it was agreed that “the testimony now on “file in said case for each party shall be read on the trial, subject to all legal “exceptions, not going to the form and manner of taking.” The court permitted the paper to be read. There was evidence conducing- to show that under the agreement between the defendant and tlie firm at Houston the, land was conveyed by the defendant to the firm in New York iu satisfaction of four thousand dollars of the indebtedness to them of the Houston firm, and that the defendant received, or was to receive, in consideration, a credit upon the books of the latter firm of twenty-five hundred aud seventy-seven dollars and sixty-two cents. There was a verdict for the plaintiff for twenty-two hundred and seventy dollars aud twenty-five cents; a motion by the defendant for a new t rial, which the court overruled, and gave judgment for tlie plaintiff, and the defendant appealed. Tlie assignment of errors embraced the following points:
    1st. Thai (lie court had not jurisdiction to render judgment in the case.
    2d. That there was error in admitting iu evidence the'copy of tlie agreement from the records of Harris county.
    3d. That the verdict was not warranted by tlie evidence, and was not responsive to the issue.
    
      J. E. Shqxtvd, for appellant.
    
      J. Sni/les, for appellee:
   TTincRLKR, J.

The assignment of errors brings in question the effect to the submission of 1 he controversy to an arbitration, the admissibility .of tlie transcript, from the records of Harris comity, tlie siiilicieney of the evidence, and tlie relevancy of the verdict to the issues.

It was doubtless the intention of tlie parties to avail themselves of tlie provisions of the act of 1840, (Hart. Dig-., p. 89,) in submitting- the case to arbitration. The statute prescribes tlie proceedings which shall be had; and if they would have invoked its aid they should have observed its directions. This they have net, done, but have substituted their agreement, variant from tlie law, for its provisions. (See Statute, section 4 and (j.)

In (lie ease of Owens v. Withee, (3 Tex. K., 101,) a doubt was expressed whether the statute was intended to embrace a case where suit had been brought. However 1 lint, may be, it is clear upon tlie authority of that case and upon principle that this award could not have been made the judgment of tlie court, under I lie, statute, because the submission did not pursue its directions. The agreement to arbitrate, therefore, not having conformed to the statute, did not divest the court of its jurisdiction of tlie case, and formed no obstacle to the subsequent proceedings and judgment. If any advantage could have been derived to either party iii this case by reason of the award, it was waived by consenting- to disregard the award and proceed to trial.

Note 8. — When an agreement to arbitrate does not depart in substance from the statute, although it fails to conform thereto in matter of form, and the parties afterwards cause the agreement to be filed in court and proceed thenceforward under the statute, the award will be a good statutory award. (Forsliey v. Railroad Company, 16 T., 510; Alexander v. Wither-spoon, 30 T., 291.)

In respect to the admissibility of the copy of the agreement from the records of Harris county we have felt more difficulty. It'clearly was not admissible, unless under the agreement of the parties of the 22d of March to the reading in evidence of the “testimony” then on file. This paper was on file; it was attached to interrogatories filed in the case; but whether it was intended that it should be embraced by the terms of the agreement may admit of some doubt. It is, however, a question of intention, and that such was the intention at least of the party offering the paper appears probable from the fact that though its admission in evidence was very important to his case ho took no further steps to make the proof necessary to enable him to introduce it. It does not very satisfactorily appear what other papers were on file, intended to be read in evidence by the parties respectively, to wldcli the agreement referred. It was the opinion of the presiding judge that it embraced this paper, and we are not prepared to hold that he erred in that opinion. We regard the. evidence in the case as quite sufficient to authorize the finding; and had not this paper been before the jury we should hesitate to disturb the verdict, on the ground that it was not warranted by the evidence.

There is nothing in the objection that the verdict is not responsive to the issue. The answer put in issue the alleged indebtedness of the defendant, and it is never necessary to entitle the plaintiff to a verdict that he should prove the whole of his demand. He is entitled to recover what the evidence shows to be due. The judgment is affirmed. ‘

Judgment affirmed.

Bipsoomb, J.,

not having heard the argument, gave no opinion.  