The opinion of the court was delivered by

The question is, whether the state of demand sets out a legal cause of action. Is the plaintiff entitled to recover, if all he alleges in his demand is true ? Richardson had agreed, it would seem, to purchase these crops of Lanning and Grant, at a valuation to be fixed by the referees selected by the parties. The referees fixed the valuation, and the grain was thereupon delivered to the purchaser, and the money paid. Now the fact that the referees committed an error in their estimate of the quantity of grain, furnishes no legal ground for a recovery back of a portion of the consideration money paid. The legal effect of the agreement, as deduced from the state of demand, is, that the vendors were to sell, and the vendee to buy the grain at such valuation for the whole, lot as the referees should fix. It was like a bargain for a lot of standing timber, or a field of growing grain, at an estimated value, to be fixed by appraisers. The parties agree to take the judgment of others, instead of their own, and having so agreed, they are bound by that judgment just as much as if they had agreed upon the quantity and price tliemsel ves.

This must have been the intention of the parties at the *132time. Eor if it bad been understood that the value was to be governed by a measurement to be subsequently made, or a price per bushel to be subsequently fixed, then the reference was a sheer farce, and amounted to nothing. There is no pretence that the agreement contained any provision for a subsequent ascertainment of the exact number of bushels; the sale was not by the bushel, but by the lot, the quantity as it stood in the field or stack. And the general rule is, that where parties agree to refer a matter to the judgment of others, their judgment is conclusive, unless fraud, collusion, or some plain, palpable mistake upon the face of the award appears, which is certified .to or admitted by the arbitrators. Pintard v. Irwin, Spencer 497 ; Bell v. Price, 1 Zab. 32.

As to the argument, that the count for money had and received, and paid, laid oat, and expended, is good, though the special count be bad, it is sufficient to say, that if the special count, as it is called, be stricken out, the common count, standing alone, would be insufficient, for ic requires a reference to the special count to make it intelligible.

The judgment is affirmed.