The judgment of the coart was pronounced by
Rost, J.This is a suit upon a building contract. There was judgment for •'be plaintiff and the defendant appealed.
The appellant has called our attention to several bills of exception; one of which it is first necessary to notice. The plaintiff offered witnesses to px-ove that after he had left the work, the defendant proposed to him to submit the matter between theixx to two persons, one to be chosen by each party, and that they would abide by the decision of those persons as to the compensation to be allowed to the plaintiff for his work ; to which the defendant’s counsel excepted, on the ground that this fact must be shown by written evidence.
The judge overx-uled the exception on the gx-ound that the evidence was admissible to show a change in the original contract between the parties, as to the amount of remuneration the plaintiff was to x-eceive for his work.
We are of opinion that the judge eired. The witnesses were offered to prove a submission to arbitration, and the award thereon, which the code expressly declares, imxst be in writing. C. C. 3067.
The ground upon which the judge admitted the evidence was not acted upon in the trial; he told the jury, in his charge, that they were to disregard the award of the arbitrators, only in case they should be of opinion that the examination of the work had not been properly made by the experts, and that the defendant was not present, and had no opportunity to make any objection thereto.
The testixnony should not have been admitted ; and the cause must, on that accouxxt, be remanded.
The judgment is therefore reversed, and the cause remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.