By the Court,

The only error assigned in this case is that the court admitted parol evidence to prove* that other matters were submitted to the arbitrators *244than those contained in the written submission. Had the action been brought for a breach of the agreement contained in the written submission, parol testimony to vary the terms of that submission would have been clearly inadmissable. Or had the suit been brought to recover money due and ascertained through the award of arbitrators for which an indebitatus assumpsit would have lain, the written submission must alone have been the basis oí that award. But the declaration in the present case after citing the submission and award (without stating whether the former was parol or written) alleges that the plaintiff performed what the said award had rendered it incumbent on him to perform, and that in consideration thereof the defendant undertook and promised to do certain things which the arbitrators had decided that he ought to do anu perform. A breach of the agreement is then sufficiently set forth.

The gist of the action then seems to be neither the submission nor the award, but the subsequent promise, for which there was an adequate consideration. If this be the case, the only object in setting forth and proving the submission and award was to show the exact nature of the promise and in some degree to strengthen the consideration therefor. The submisson does not seem to be strictly material, but a part having been proved it was proper that the whole should appear before the jury. All that was necessary to enable the plaintiff to recover was proof of the final promise, the consideration and the breach, but the previous submission (as well parol as written) might tend to reflect light upon the subsequent promise sufficient to justifiy its introduction, on the ground of relavancy. At all events from the facts appearing before us we are not prepared to decide that the court erred in admitting the parol testimony referred to on that score; which is the only available objection, if any, that could have been raised to it.

Judgment affirmed.

I think that the error of the arbitrators, in going beyond the written submission of the parties, was waived by the plaintiff in error, when he agreed with the defendant in error to abide by and perform the award, and reaped the benefit arising from the latter’s performance of those things to be done on his part, and that he cannot now set it up as a defence. It appears to me however, that it was unnecessary, on the part of Yarnel, on the trial in the court below, to adduce testimony shewing that these matters, not mentioned in the parol submission were submitted to the arbitrators. It was suScient for him to *245show that an award was made, that both parties agreed to abide by and perform it, and that be performed his part which was accepted by Dice. When parol testimony was introduced on the part of Yarnell shewing that the parties went beyond the written submission there was a violation of the well settled principle of law, that parol testimony cannot be received to extend the terms of a written agreement, and as it may have had some influence upon the jury in estimating the damages, the judgment in my opinion ought to be reversed.