There was error in excluding the submission and award, and the parol evidence showing the circumstances, of the arbitration.
1. The point that the award was signed by R. V. Nottingham, when the submission described him as “ R. B. Nottingham,” is met by some evidence we find in the record, showing that the person selected as the referee was Robert Nottingham, the druggist, and that the Nottingham who was the druggist was the referee who acted, and whose signature was to the award. This was a misnomer in the submission, and a very slight one too,, only a B for a V.
*2712. The objection that the submission was too vague and uncertain is not well-founded; because from reading the submission, we well understand that it related to a controversy which had arisen between the parties with reference to a horse. The submission does not set out what the controversy was, but the subject-matter was “ the purchase and settlement of a horse.” This action was brought for the price of a horse. If the submission be ambiguous — and it is somewhat so, — it is explainable by parol evidence, under sections 2757 and 3801 of the code. There is at least enough in the instrument to build upon with parol evidence; and the evidence offered and ruled out would have made it sufficiently certain, if it was wanting in certainty before.
3. The objection that the award does not follow the submission or relate to this controversy but relates to a difference between prices, and to the question of guaranty, is not good; because the award settles that one of the parties to the arbitration is to pay to the other $40, “ being the difference asked between the mare and the grey horse.” The evidence shows clearly what is meant by this reference to the mare and the grey horse. Riley had purchased a mare from Butner and- Hicks at the price of $160. He had paid for her. The award finds that Butner, who represented this partnership in that transaction, guaranteed the mare. She proved unsound (it might have been in controversy whether she was unsound at the time of the purchase, but she was certainly so afterwards,) and died. Riley also, at a later date, purchased of the same parties a horse, the one the price of which is now sued for, at $175. In this latter purchase, some negotiations took place with reference to the difference to be paid between the two animals, the sellers (seeming to concede their liability upon the warranty) asking $40, and the buyer being willing to give *272$15. The award, deals with that subject, and decides that Riley is due Butner & Hicks $40, “ being the difference asked between the mare and the grey horse.”
4. The objection that the award was made without a proper hearing from Mr. Hicks, was matter for investigation and trial in connection with the defence of arbitration set up in the case. The arbitration and its results cannot be excluded because one of the parties contends that the proceedings on the submission were not fairly conducted. The question of fairness is certainly not one for the court to determine, so as to exclude the whole business from the consideration of the jury; it is a part of the matter to be tried, and its privilege is only to go to the jury with the award, not to prevent the award from going before that tribunal.
5. The court also erred in charging the jury that if Hicks offered to return the purchase money of the mare and Riley refused, this released Butner & Hicks from their warranty. How would it release them from their warranty ? Does the offer to pay damages sustained by a breach of warranty release the warrantor from his liability upon the warranty ? Does an offer to rescind the contract (supposing we treat it as an offer of rescission and a refusal to rescind) release the warrantor from his contract of warranty? The answer of the law to these questions is the same as that made by common sense.
6. The question of whether the assignment of this account was sufficiently proved on the trial we leave open There will be opportunity, as a new trial is ordered, to amend the declaration, making both of the partners parties plaintiff, if it should be found necessary. The action is brought by Hicks, one of the partners, for the price of a horse sold by Butner & Hicks to Riley. The bill of particulars annexed to *273tbe declaration debits Riley to Hicks, “transferee of Butner & Hicks.” It is very probable, if tbe declaration is left to stand as it is, that under tbe case of Turk vs. Cook, 63 Ga. 681, it would be necessary for Hicks to prove a written assignment of tbe account in order to recover. But we see no obstacle to amending tbe declaration by .supplying Butner as one of tbe parties plaintiff suing for tbe use of Hicks.
.Tbe judgment refusing a new trial is reversed.