Justices GARDNER and FOSTER concur in the result, but are not in accord upon the questions of accounting and estoppel treated in the opinion. They are of the opinion that as the defendant is shown by the proof to have not been in default, but in fact proceeding with the arbitration when the bill was filed, it could not be held accountable for rents and profits. National Waterworks Co. v. Kansas City (C.C.A.) 62 F. 853, 864, 27 L.R.A. 827; 3 Williston on Contracts, § 1421; 36 Cyc. 578b.
They further think that no estoppel or waiver is shown, as contemporaneously with the plea of non est factum, and in the same document, defendant in detail pleaded the arbitration agreement, the pendency of the negotiations, and complainant's unwarranted repudiation thereof by filing the bill; all of which alternative pleading is recognized by statute and decision. Section 6547, Code; Ex parte Dunlap, 209 Ala. 453,96 So. 441.