1. The circuit court permitted the defendant, on motion, to amend his answer by inserting therein a statement of the particular facts and circumstances of the alleged assault, battery and false imprisonment, which constituted the matter of difference between the parties when the agreement of submission was entered into. It is claimed that this was error.
It was within the sound discretion of the court to permit the answer to be amended in that respect. While it may be true that the answer was sufficient without the amendment, and that the new matter inserted therein is redundant matter, yet the order of the court permitting the amendment to be made is not one “ involving the merits and necessarily affecting the judgment,” and hence it can not be reviewed on an appeal from the judgment. Tay. Stats., 1632, § 6. Probably the order itself is not appealable. Had the objectionable matter been inserted in the original answer, an order refusing to strike it out as redundant would not be appealable. Noonan v. Orton, 30 Wis., 609.
2. The plaintiff read in evidence a letter addressed by the defendant to Hill, one of the arbitrators, dated September 22, 1870, which is as follows: “If your decision between me and S. McCord has not yet been rendered, please request Mr. Smith to withhold until I see you, within a few days.” He also read in evidence another letter of the same date, addressed by Gordon, one of the arbitrators, to Hill and Smith, the other arbitrators, informing them that he had withdrawn from the arbitration.
The defendant was permitted to testify, under objection, that *547on the evening of the same September 22, Gordon told him that the board of arbitrators had dissolved and nothing more wo aid be done in the matter, and that he wrote the letter to Hill in the morning of that day, and before he knew of such dissolution.
The effect (if not the purpose) of introducing the defendant’s letter to Hill in evidence, certainly was to raise a presumption that on the day Gordon withdrew from the arbitration, the defendant recognized the board of arbitrators as still in existence and competent to make an award. We think the testimony objected to was competent to explain that letter and the circumstances under which it was written, and perhaps to qualify or limit any inference which might otherwise be drawn from it, that the defendant recognized the authority of Hill and Smith to make a valid award.
8. The following question was put to the defendant in his own behalf: “ State to the court and the jury the nature of the difference between you and McGord at that time, as detailed by the witnesses before the arbitration ? ” An objection having been interposed to the question, on behalf of the plaintiff, the court said : “ Eor the purpose of showing that the arbitrators acted upon matters which were not submitted to them, I will admit the testimony; but you can not go into the merits of the controversy, and have it decided here on its merits. You can show generally, what the matters in dispute were.”
It seems very clear that the testimony sought to be elicited by the question, was competent testimony, for the purpose and to the extent indicated by the court.
4. Gordon testified that on the morning of September 21, he told Hill, at the office of Gregory & Pinney, in Madison, that he proposed to withdraw from the arbitration ; that Hill then left the office, and Smith came in, and he told him the same thing. Smith desired to know why, and the witness gave him his reason for so doing. The witness was then asked, on behalf of the defendant, what reason he gave Smith for such *548withdrawal; an objection to this interrogatory was overruled; and the witness answered in substance that he told Smith that his reason was that he did not believe that he (Smith) was an impartial arbitrator.
This was the same conversation in which it is claimed that Smith agreed in a certain contingency to withdraw from the arbitration. On the issue as to whether Smith did so agree, we think the whole conversation relating to the arbitration is admissible in evidence on behalf of either party, the same being part of the res gestos; and hence, that the court did not err by admitting the testimony under consideration.
5. Cordon was also allowed to testify that when the arbitrators were chosen, he objected to the selection of Smith as one of them. We hardly think that the testimony was proper, but are unable to perceive in what wray the plaintiff could have been injured by it. If wrongfully received, it seems to be one of those immaterial and trifling errors which are almost unavoidable in the trial of sharply contested jury causes, and which result in no injury to any one. Such errors do not work the reversal of judgments.
6. The court refused to permit Gordon to testify as to the manner and appearance of Smith, when he was examining witnesses on the hearing before the arbitrators; but, in response to the remark, “ You may state any facts you know,” the witness made the following statement: “ When McSpaden made a statement that appeared to bear hard on Mr. McCord, Smith would ask a question in order to lighten it a little; and when it bore on McSpaden's side, he tried to do away with it.” The court refused to strike out such testimony, and we think the ruling was correct. It was a statement of an alleged fact, having a direct bearing upon a question which was distinctly submitted to the jury, without objection, as an issue in the case. That question was, whether either of the arbitrators who made the award had been guilty of any misconduct or unfairness in the matter of the arbitration, so gross as reasonably to lead to *549the inference that the award was affected by it. It is true that the issue is not thus broadly made by the pleadings, but no objections or exceptions to the testimony or charge of the court were interposed on that ground. In such case the pleadings may be amended (if necessary) after judgment, to conform them to the facts proved, or the variance may be disregarded. Tay. Stats., 1445, §§ 85 and 86. It is also true that the testimony of Gordon as to the character and purposes of the questions put by Smith to the witnesses on the hearing before the arbitrators, is very general and indefinite, so much so as to be entitled to but little weight; yet it is, as before observed, testimony concerning the existence of a fact material to the issue, and was therefore competent.
7. Exception was taken by the plaintiff to but one of the instructions which the court gave the jury. That instruction is as follows: “ If you believe from the evidence that one of the arbitrators, Gordon, was induced to resign or withdraw from the arbitration by reason of the agreement of the other two arbitrators, Smith and Hill, to withdraw and resign their authority as such arbitrators, and thereby the said arbitrator Gordon, so resigning, was prevented from meeting with the arbitrators at the time of the making of the award, in such case the award is void, and you should find for the defendant.”
The only objection made by the learned counsel for the plaintiff to this instruction is, that it intimates, if it does not directly state, that Smith and Hill had agreed to withdraw from the arbitration when Gordon did so. If this objection, or criticism rather, is not well taken, it seems to be conceded that the instruction states the law correctly. We think that the objection is not well taken. Reading the instruction by itself, it is perfectly apparent that the judge spoke hypothetically of the alleged agreement of Smith and Hill to withdraw. No man of ordinary intelligence could be misled by the language employed. But considered in connection with the balance of the very clear and able charge of the learned circuit *550judge, there is no room to doubt that the question of fact as to whether Hill and Smith did withdraw from the arbitration, was submitted to the jury for determination.
8. There are a few other exceptions, of minor importance, which it is not thought necessary to discuss. They have all been considered, and our opinion is that none of them are well taken.
Upon due consideration of the whole case, our conclusion is, that the judgment of the circuit court ought to be affirmed.
By the Court. — Judgment affirmed.