■ The defendant introduced a submission to arbitration, award, and a receipt. The submission recited that there existed matters in controversy between Middleton and McElreath in relation to the settlement of partnership business between them, and there was a further matter of controversy between Mrs. Middleton and McElreath in regard to a board bill, she claiming that he owed her for board of himself and family, and he claiming that he owed her nothing and if he owed any one for board it was Middleton and not Mrs. Middleton; that suits were proceeding, among them a suit by Mrs. Middleton in the justice’s court to enforce the account; that all parties were willing to settle all their disputes and controversies without further litigation and agreed to leave all the matters mentioned above, etc. to two named arbitrators, one selected by Middleton and his wife and the other by McElreath, and another arbitrator chosen by the two arbitrators first mentioned; and that the parties further agreed that the award should be made the judgment of the superior court and should be final. This was signed by Wooten as attorney for Middleton and Mrs. Middleton, and by attorneys for McElreath. The award found, among other things, that McElreath should pay Middleton $681.09 ; that Middleton should pay the costs in the suit of Mrs. Middleton against McElreath; and that McElreath was due Mrs. Middleton nothing for board, nor for anything else. The receipt introduced was signed by Wooten as attorney for Middleton, and was for $531.09 “in full payment of the award made by the arbitrators in the matters of dispute between R. S. Middleton and Mrs. M. L. Middleton and T. P. McElreath.” McElreath testified : He owed Mrs. Middleton nothing. He boarded at the hotel at the time in question, but went there under a contract of board with Middleton, who was then his partner in business. The account was. the same as that which was arbitrated. "Wooten represented Mrs. Middleton in her suit in the justice’s court, withdrew the suit for the purpose of submitting it to arbitration, and represented her in the arbitration. Before the agreement to arbitrate Wooten came to see witness about a submission to arbitration, and witness refused to agree unless the differences between Mrs. Middleton and himself were also submitted. (Wooten testified he did not remember this.) Wooten then said he would see Mrs. Middleton in regard to it, and after a time returned' and said she was willing to arbitrate, and witness then agreed to submit all their differences to arbitration. The reason why there is a difference between the amount of the award and the amount of - the receipt is, that witness had paid Middleton $150, which fact the arbitrators lost sight of in making the award and did not give him credit for it, and witness refused to pay the award on this account. Middleton agreed to deduct this amount from the award- and did so, and witness then paid it. On the arbitration trial Middleton swore that what Avas his and what his Avife’s was six of one and half a dozen of another. After the arbitration the justice’s court suit was dismissed and the costs paid by Middleton or his wife. There was other testimony for McElreath, that the board bill was brought up in the arbitration, Mrs. Middleton not appearing as a witness; that the justice court suit Avas dismissed and Middleton paid the cost, etc. One of the arbitrators testified that he did not remember whether Mrs. Middleton’s account was submitted to them, and that she was not present.Martin & Smith, Busbee & Crum and W. Brunson, for plaintiff in error.Pate & Warren and Gr. W. Wooten, contra.
