¶1I concur in the conclusion reached by Mr. Justice O’Brien, but upon a different ground than that suggested by him in his opinion. I think that as limited by the bill of particulars the plaintiff had to prove an agreement made on the 1st of March, 1897, by which the defendant agreed to waive the provision of the contract requiring a certificate of the architect, but I do not understand that the waiver relied upon was solely the execution of the agreement to arbitrate. *119I think that under this allegation it was competent for the plaintiff to prove that on that day there was an express agreement entirely independent of the agreement to arbitrate by which the defendant waived the production of the certificate. I agree that the arbitration agreement in itself could not be deemed a waiver of this requirement of the contract, as the plaintiff terminated the arbitration, and thus the parties were relegated to their rights under the contract as though no arbitration agreement had been made. The question would then be presented as to whether the provision of the contract requiring the architect’s certificate had been waived by an independent agreement which survived the revocation of the agreement to arbitrate; and I think any competent evidence of such an agreement should have been admitted to establish such a waiver. The plaintiff was asked this question : “ Did you have any conversation with Mr. Powers on the subject of the payment of your claim in connection with the subject of any architect’s certificate ? ” That was objected to by the defendant upon the ground that the bill of particulars says definitely that the waiver was agreed to on or about the 1st of March, 1897, and submits all matters in difference to arbitration, and that evidence of any independent agreement was not within this provision of the bill of particulars. This objection was sustained and the plaintiff excepted, and I think that ruling was error. It is true the form of the question was subject to criticism, but I "think that the ruling of the court in sustaining the objection was in substance a ruling that no agreement with the defendant to waive the certificate could be proved as the plaintiff was limited by the form of the bill of particulars to proof of the arbitration agreement and he has based his contention of a waiver upon that agreement only. This objection having been sustained upon that ground, I think the exception fairly raises the question as to the correctness of the ruling, and that the plaintiff was not bound to put further questions to show that the conversation that took place on the first of March was in effect a waiver of the certificate irrespective of the agreement to arbitrate. For this error I think the judgment should be reversed.
¶2Judgment reversed, new trial ordered, costs tv appellant to abide event.