This suit was brought to recover damages for the breach of a covenant between the parties, with a stipulation in the covenant, as it appears, that if any disagreement between the parties should arise, it was to be referred to two disinterested persons, who should adjust the difference between them. A difference did arise, and the parties each selected a man to adjust it, in accordance with the contract. It appears from the statement of the facts, that the parties were each before the referees, and waived all informality, and waived the swearing of the referees, and on the latter refusing to act unless the parties agreed that the award should be final and binding, the parties both consented to the stipulation. When the award was made, both parties were present. ,
The Court charged the jury, on the trial of the case, that “ The award of the two persons, Killison and Clewis, selected “ to settle and determine this matter for the parties, was not “ binding on either of them, unless they both agreed to, and “ and accepted their award as a settlement of the matters of *226“ dispute between them.” This charge was excepted to, and it is assigned for error.
This question has not been argued, and no authorities referred to, that would enable us to give a decided opinion.— But it seems to us, that the mode of settlement having been expressly provided in the covenant, and the matter having been referred, as we have above shown, and the award made, that it was unnecessary that the parties should, after the award was made, accept it as a final settlement of the matters in dispute between them, to make it binding. It was not an arbitration under our Statute, nor was it an order by the Court by consent of parties, after suit commenced. But there is no principle, it is believed, that would so far restrain parties to a covenant, where both of the parties were bound to do certain things, from stipulating in the covenant, for the settlement of any difficulty or disagreement that might arise between them out of the covenant. But, as the case will have to be sent back on another ground, under the circumstances before intimated, we decline expressing any decided opinion on this point.
We believe that the Court below erred in overruling the appellant’s motion for a new trial, on the ground that the verdict was contrary to evidence. The jury gave by their verdict, to the plaintiff below, appellee in this Court, ninety-three dollars, forty cents, when, by putting the highest price proven, that corn and cotton were selling for, without any allowance for gathering it, and giving the appellant credit for Ms account proven, it could not have been more than half that amount, and if a fair and reasonable influence is allowed for the evidence, jt could not have been more than seventeen dollars, without any abatement for gathering the crop.
The evidence was that corn that Fall was selling at from seventy-five cents to one dollar per bushel, and cotton at one dollar and seventy-five cents per hundred pounds in the seed. The evidence of the quality of the corn was, that it was very *227inferior, principally nubbins, as witness called it. Now, corn of that quality could not certainly be estimated at the market price, which must refer to good corn, and to say the difference would ho one half, would be but a reasonable allowance of valuation. The evidence of the valuation of corn and cotton was for both when gathered, without any deduction in favor of the appellant for the labor of gathering it in, which, for the cotton particularly, would have reduced the rate considerably. The record is very defective in not presenting with perspicuity, the several points in the case, and particularly so, in presenting the evidence. On the next trial these defects can be avoided. The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.