¶1Under the plea as traversed the only question was, did the arbitrators award upon matters not submitted to them.
¶2I. The submission was agreed upon after the suit had been brought, and it included not only the suit, but “ all matters of difference between the parties.” Hence the arbitrators were not bound by the balance between the parties as it stood when the suit was brought. They had a right to regard it as the accounts appeared at the date of the- submission. The balance due when the suit was brought might affect the award as to the costs of the suit, if that balance had been in favor of the plaintiff. But the balance was found against the plaintiff, both at the time the suit was brought and at the time of trial — hence the costs of both suit and award would be against him; and in that view the arbitrators very properly deemed it unimportant to specify the balance due when the suit was brought.
¶3II, The items which the parties settled between themselves after they entered into the agreement to arbitrate, and before the trial, *255were not, perhaps, strictly matters of difference between them. But it was the plaintiff who brought them into the accounting before the arbitrators ; and he presented them as credits due to the defendant. The defendant made no objection. The arbitrators supposed, and had a right to suppose, they were a part of the accounts which were to be adjusted by them.
¶4If the parties to a submission in writing do, upon the trial before the arbitrators, submit by mutual consent to the arbitrators matters not included in the written submission, and the arbitrators acting under such mutual consent of the parties, do try the matters so verbally submitted and make their award, — neither party after publication of the award can object that the award exceeded the submission.
¶5It is urged that here the plaintiff’s counsel in his qlosing argument claimed that the arbitrators should find and state the accounts of the parties at the commencement of the suit, as the costs would depend upon how the balance stood at that time. This was not withdrawing the credits he had presented, or objecting to their being tried by the arbitrators. It was merely insisting that that aspect of the case should be regarded which might _ in one event give the plaintiff his costs. If the plaintiff, after presenting these items for adjustment, wished to withdraw them from the consideration of the arbitrators, he should have done so in a direct and unequivocal manner ; so that the arbitrators would have as distinctly understood that the consent was withdrawn, as that it had been given.
¶6Judgment affirmed.