*1381 Misjoinder; waiTCr'*137This was an action commenced in a justice’s court, and after trial and judgment it was appealed to *138the district court, where it was again tried, and on such trial judgment was rendered in favor of the plaintiff, Montgomery Carter. The defendant, Harrison Berry, as plaintiff in error, now brings the case to this court. The plaintiff below set forth in his bill of particulars two causes of action. We think there was no misjoinder of such causes of action; but even if there was, still, as the question is raised for the first time in this court, no error was committed by the court below in adjudicating upon both of said causes of action.
2 mentTparai evidence. The first cause of action was founded upon a written instrument. The plaintiff did not furnish a copy of' said written instrument with his bill of particulars, nor did he introduce either the original or a copy thereof in evidence. . But he alleged in his bill of particulars that the original was lost, and on the trial he sufficiently ° , 7 _ proved its loss, and then proved the contents thereof by parol evidence. No objection was made, in the court below, to the introduction of' said parol evidence, and hence of course no error was committed in permitting it to go to the jury.
3ijycontract cfaiiMíÓrof damages. *1394 onrefusaito Sri!*faction at aw accrues.*138Said written instrument was a contract made and signed by the parties to this action, and by several other persons. It was in substance as follows: Each signer was to keep up his own cattle, and prevent the same from trespassing upon or injuring the crops or hedges of any one of the other signers, for the period of three years; but in case any iniury should occur within that time by reason of the cattle of any one signer trespassing upon the cr0pS 0r hedges of any other signer, and in case the parties themselves could not agree upon the amount of the damages sustained, then the question as to the amount of such damages was to be submitted to arbitrators consisting of three of the signers to said written instrument—each party choosing one of such arbitrators, and these two a third, and the decision, of the arbitrators was to be final between the parties. We know of no reason why such a contract should *139not be valid and binding. The defendant’s cattle trespassed upon the plaintiff’s wheat crop, and injured it. The wheat stood growing in a field around which no fence or other lawful inclosure existed. But if said contract was valid and binding, and we think it was, it made no difference whether said field was fenced or not. The plaintiff, after driving said cattle from his wheat-field to the defendant’s premises, demanded of the defendant damages for the injury which he (the plaintiff) claimed that the cattle had committed, and he had sustained; but the defendant refused to pay any damages; he said that he would not be bound by said contract, and that if the plaintiff got anything out of him it would be by law. defendant himself testified on the trial—“I told plaintiff that I had consulted with attorneys reference £0 sai(J contract, and that I would not recognize it, as others had not recognized it.” The plaintiff did not propose to appoint arbitrators under the contract; and under the circumstances we do not think that he was required to do so. It would have been an idle and useless ceremony to propose an arbitration under a contract which the defendant refused to recognize. The defendant, by refusing to recognize the contract, waived his right to an arbitration, and at once gave authority to the plaintiff to sue him in any court having the requisite jurisdiction, for the damages which plaintiff had sustained.
5 pussesfeffect *140counterclaim-set-off. 6. mamtainaction contractis’in*139The defendant, Berry, offered to prove on the trial, that plaintiff’s cattle had trespassed upon his crops; but the plaintiff objected, and the court sustained the objection, The defendant (plaintiff in error) now claims that this ruling of the court below was erroneous. "We do not think however that it was erroneous. The defendant did not inform the court below for what purpose he offered to introduce said evidence, and he had no bill of particulars or other pleading on file (for he had filed none) from which his purpose might be ascertained or inferred. But we would think said evidence was incompetent for any purpose. It was certainly not sufficient to show that the parties had by *140mutual consent rescinded said contract, or waived its terms. The contract itself contemplated that there would be trespasses, and provided a way for settling the damages caused thereby. Each party had a right under the contract to recover damages for trespasses committed by the cattle of the other party, and each party had a right to have these damages determined in a particular manner. And neither party lost his rights under the contract by permitting his cattle to trespass upon the crops of the other party. Therefore, as mutual trespasses would not of themselves and could not of themselves revoke or destroy the contract, then said evidence could have been relevant only for the purpose of establishing a counterclaim, or set-off. But it was not sufficient for that purpose. A counterclaim or set-off is necessarily a cause of action in and of itself, and in favor of the defendant and against the plaintiff; and a set-off must be a cause of action arising upon contract, or ascertained by the decision of a court. A trespass disconnected with contract could not be the subject of set-off. But the defendant’s evidence did not even prove'a cause of action of any kind. It did not prove or tend to prove that the defendant’s crops were fenced, or that the plaintiff drove his cattle upon the defendant’s crops. Nor did it tend to prove any other contract than the one we have already mentioned. Now under that contract the defendant .did not have either a counterclaim or a set-off. Under that contract it was not only necessary that the defendant’s crops should have been injured by the plaintiff’s cattle, in order to give the defendant a cause of action, but it was also necessary that the defendant should have been ready and willing to have his supposed damages adjudicated under the contract by arbitrators, and that plaintiff should have been unwilling to have such damages so adjudicated. Now there is no pretense that the defendant was ever willing, or that the plaintiff was ever unwilling, to submit any question of damages to arbitrators according to said contract. Indeed, the defendant wholly ignored the contract, and refused to *141recognize it. This is shown by the testimony of the defendant himself while on the witness-stand. If the defendant has really sustained any damage by reason of the plaintiff’s cattle trespassing upon his crops, or hedges, he may hereafter offer to submit the question of damages to arbitrators, according to the contract, and then, if the plaintiff refuse, the defendant will have a cause of action against the plaintiff. But from the evidence he has no such.cause of action now.
