In our former statement of the case it is said that defendant, when he made the promises to pay the award, subsequent to its rendition, knew the facts alleged to invalidate it. This had reference to the presentation to the arbitrators of his claims for damages and their alleged refusal to consider them. There was evidence of conversations between the arbitrators, which are denied, however, by other evidence, tending to show gross partiality to plaintiff on the part of two of them. It is not shown that these were known to defendant when he made the promises referred to.
It is also stated in the opinion, that the right to any money due from defendant belonged to Bickel. This statement was made in view of the fact that Wellman had left with more than any share that he would have been entitled to, and that Bainbridge was admitted into the partnership after the contract was made. There is evidence that, if the amount claimed by Bickel should be collected from Gill, there *Page 77 would be a small profit to divide between Bickel and Bainbridge, after repaying Bickel for his outlay in completing the contract. But that fact, we hold, would not invest Bainbridge with the power to cut off Bickel's right to recover the whole amount due from Gill. The court below, however, gave the release from Bainbridge the effect of passing to Gill whatever sum Bainbridge was entitled to receive out of the proceeds. With this additional statement, the motion is overruled.
Overruled.