delivered the opinion of the Court:
We are unable to find any substantial support in law for any of the propositions involved in these assignments of error in view of the facts of the cases under consideration.
The first assignment of error is palpably untenable.
The trial of the causes at the same time and by the same jury was a matter within the discretion of the trial court, *368and plainly not a subject for appeal to an appellate tribunal. Counsel for defendant have failed to point out wherein any injury has accrued to the defendant, or wherein the defendant has been deprived of any right of defence or other right by the consolidation. And plainly it has suffered no damage whatever by that action of the court.
Counsel for defence have likewise failed to support, either by argument or by authority, their proposition that it was not competent for the parties, or for either of them, to submit their controversy to arbitration. The contrary proposition seems to us to be consonant with reason, and sustained by the great preponderance of authority. In the absence of statutory prohibition or other conventional disqualification, the right to submit to arbitration is as broad as the right to sue and be sued. Dillon on Mun. Corp., Sec. 478; Alexandria Canal Co. v. Swann, 8 How. 83; Township of Walnut v. Rankin, 70 Iowa, 65; Sisson v. Mayor of Baltimore, 51 Md. 83; Ebert v. Ebert, 5 Md. 353; Lyle v. Rogers, 5 Wheat. 406; Dickey v. Sleeper, 13 Mass. 244; Wood v. Tunnicliff, 74 N. Y. 38; Bean v. Farnham, 6 Pick. 269; Alling v. Munson, 2 Conn. 691; Barry v. Rush, 1 T. R. 691; Bacon’s Abridgement, Art. C.; and 2 Williams on Executors, 1800.
That the parties, therefore, were competent to enter into articles of arbitration for the determination of their controversy, if they did so enter, we regard as being beyond reasonable question or doubt. And this leads at once to the substantial question in this case, the inquiry whether the parties did in fact agree to submit such controversy to arbitration, and whether, pursuant to such submission, there was an award rendered which became binding on both parties.
Whether the parties agreed to enter into arbitration, is a question of fact for a jury. The principal issue raised by the pleadings in the second suit is, whether there was such an agreement, and a submission in pursuance thereof. Such an agreement, if it existed, may have been in writing or may have been oral. The defendant claims that the agree*369ment, whatever it was, is contained in the letter of the attorney to the Commissioners proposing it and the order of the Commissioners made in pursuance of that letter; and therefore it objected to the introduction of oral testimony. But plainly these documents do not of themselves constitute an agreement. The order of the Commissioners does not refer in tefms to the letter of the attorney and does not purport to have been made in pursuance of it. Oral testimony was admissible to connect the two, and to show the transactions between the writing of the letter and the making of the order. The letter and the order are only parts of the contract, not necessarily referable one to the other; and it was proper to show the connection by oral evidence. It is plain from the record that the agreement for arbitration, if such an agreement there was at all, was, in contemplation of law, only an oral agreement, whereof some of the steps or component parts were in writing or to be evidenced by writing. It necessarily follows, therefore, that oral testimony was proper in proof of it. And it follows likewise, as there was conflicting testimony on the subject, that this was an issue proper to be submitted to a jury, and should not have been withdrawn from them, as prayed by the defendant. For the question is not, as counsel for the defendant in their argument would seem to imply, one of the construction and effect of the records of the court. The agreement for a reference never became a record of the court. It was wholly an extraneous transaction between the parties. Whether .the report of the referee, made in pursuance of the reference, became a record of the court, is a very different question, and one which only enters as one element of proof, into the determination of the issues in the case.
But even if the contention of the defendant were correct that the entire agreement between the parties is evidenced by the letter of the attorney and the order of the Commissioners, it is not apparent that this helps the defendant’s *370cause. For if the agreement consists of these two documents, then the order of the Commissioners would necessarily have to be construed with reference to the letter of the attorney, the offer of which was in specific and distinct terms, for an arbitration that should be a final settlement of the controversy. An order that could not be construed as an acceptance of that offer could not constitute an agreement. And if these two papers constituted all the agreement, and the construction of them as such must be as here indicated, it is very plain that oral testimony to the same effect, even if inadmissible, could not have prejudiced the defendant.
The third assignment of error is based on the admission in evidence of the referee’s report, when introduced by the plaintiff, without including the papers and evidence attached thereto and filed therewith by the referee as part of his report. This assignment is wholly untenable. Counsel for defendant claim to have themselves introduced these papers and evidence also; and if their claim be correct in that regard, it is not apparent how any injury was done by the failure of the plaintiff to introduce them. But counsel for plaintiff were plainly right in excluding these papers and evidence, so called, from their offer.
The “ papers and evidence ” referred to are merely fragmentary portions of the testimony taken before the referee, or taken by him, as he says, for his own information—some of it consisting of letters admitted instead of depositions and much of it merely notes of oral testimony never read to the witnesses and never signed by them or in any manner reduced to deposition. These “papers and evidence” do not purport to be all the testimony that was adduced before the referee. On the contrary, it distinctly appears that they do not constitute the whole testimony so taken, and that important portions of the testimony were omitted therefrom. Nor is it true that these “ papers and evidence ” were attached by the referee to his report, or that they were filed by him *371as part of his report. Nowhere in his report does he refer to them; and there is nothing in the record of the cause in which they were filed to show that they had any connection whatever with the report beyond the fact that they were filed on the same day with the report.
Manifestly to permit such fragmentary and unauthorized “ papers and evidence ” as these to be introduced in evidence in the second suit; whether offered by the plaintiff or by the defendant, would have been highly improper. They were not admissible in the case under any circumstances or for any purpose. If the testimony taken before the referee was proper at all to be introduced in evidence in this case, it should have been the whole testimony, and not merely fragmentary and detached portions of it.
But we are of opinion that this testimony was not admissible at all in the premises. The testimony is no part of the award of an arbitrator; nor is it any part of. the report of a referee, unless specifically so made by the report itself or it has been directed by the order of reference to be returned to the court. This we regard so well settled as to need no citation of authority in support of it. We presume that no authority can be found in opposition to it. It is the duty of a referee to report facts, not the testimony by which such facts are established. He is in a measure substituted for a jury, and his findings are equivalent to their verdict. The functions of an arbitrator go beyond this. He finds the facts and adjudicates the claims of the parties. It is very clear, therefore, that, unless the testimony has been in some way incorporated into the report of one or the award of the other, it constitutes no part of either.
The fourth assignment of error consists in the alleged exclusion from the consideration of the jury of the evidence attached to and forming a part of the report of the referee. What we have said in regard to the third assignment will serve to dispose of this assignment also. Moreover, we must take the statement of the presiding justice, which we may *372add is corroborated by other parts of the record, that this alleged evidence was never offered in this case, as correct; and it follows, of course, that there could have been no exclusion from the consideration of the jury of that which was never offered for their consideration.
Much argument is expended on behalf of the defendant to show that from the evidence the referee’s award or finding was not warranted. But the evidence taken before the referee was not before the court below, and is not before us; and no inference whatever of the propriety or impropriety of the award can be drawn from it. That award or report, whichever it be or be called, must be judged by its own findings of facts and its legal conclusions therefrom, and not by any extraneous testimony.
The fifth, sixth and seventh assignments of error raise simply the question whether the referee’s determination was an award based upon an agreement to submit to arbitration, or only a report to the court for its information requiring action by the court thereon to give it vitality. And this question, of course, depends for its solution upon the character of the agreement between the parties, if agreement there was. As we have already indicated, there is no record of the court to determine the matter; and the question becomes one of fact to be determined by a jury, which it was not competent for the court, under the condition of the proof, to take away from them by a peremptory instruction. We think that it was properly and fairly submitted to the jury by the court.
The question is not whether the referee’s report is correct or not; but whether there was an agreement to submit to arbitration, an actual arbitration in pursuance of it, and an award thereupon by the arbitrator. These are all matters of fact for determination by a jury; and they have all been resolved by the jury in favor of the .plaintiff. We would not be disposed to question the justice of their verdict, even if we had the right to do so. The argument upon the merits of the plaintiff’s original claim, even if it were well *373founded in fact, has no place in the discussion before us. If we could admit such discussion, arbitration and award would be a farce, and even reference to a referee under statute or rule of court would be a meaningless formality.
We are of opinion that there is no error in the record; and that both of the judgments appealed from should be affirmed with costs. And it is so ordered.