This is a proceeding brought as an appeal from the disallowance of a claim against an estate to establish as preferred a supposed award of arbitrators, amounting to P22,629.45, and also to declare the plaintiff the owner of one-half of certain credits aggregating P38,529.92.

Upon the dissolution of the house of Cassells, Buchanan &  Co. of Iloilo, in 1897, a new firm was formed consisting of the plaintiff, residing in England, who was the principal capitalist, and John T. Grindrod, of Iloilo, who was the resident managing partner and contributed a small amount of capital.  A disagreement having arisen  between the partners as to the terms of settlement, turning principally on the classification of accounts and the ownership of certain lighters, it was referred to two arbitrators in England, one of whom wrote Grindrod as follows:

"LONDON, June 29th, 1905.

"DEAR GRINDROD: Referring to my letter by last mail, Patterson and I had, as I told you, a discussion over the accounts, and we ultimately came to the following conclusion.

"The question of how long Cassells remained or did not remain your partner seems to be immaterial at the moment, seeing that you are both agreeable to take as a starting point the balance as shown by you on the 31st March, 1903.

"The other smaller items were  not disputed  on either side, and therefore the whole question resolves itself into that of the entry for the lighters and the value to be put upon the lighters, and the question as to whether Alvarez' account belonged to the firm or to Cassells individually.

"As regards the former, we came to the conclusion that the entry of half the value of the lighters should not have been made to your debit, and we therefore accepted your account to write it back with interest.  With regard to the value of the lighters, we  agreed that the valuation  of $7,000 each put on them by Cassells, on an estimate sent him by Bethell Jones, was too high; but it was agreed that they stood in the books at too low an amount, considering that their value had to be taken as on the 19th of March, 1902, when the values of craft were pretty high.  We came to the conclusion  that it would be fair to value the 3 lighters at $15,000, thus writing them up $4,333.34.

"With regard to Alvarez' account, after going into the matter as carefully as we could we came to the conclusion that this account belonged to the firm, and not to Cassells alone.  We had not really sufficient documents before us, but we understand that this account did not appear in the balance sheet dated 30th April, 1897, on which basis you took charge of the business, as per your letter to Cassells on the 20th of the month, but that it did appear in the following balance sheet; and we have therefore treated it as belonging to the firm.

"On this basis I have made up a fresh account current which I enclose, showing that  with interest, 21  months, the amount owing to Cassells by you on the 31st December, 1904, was $22,629.45  (Conant),  and Cassells is prepared to settle on this basis, plus interest at 8% from 31st December, 1904,  to date of payment, the first payment to  be made as soon  as possible, but not later than the 31st December of this year and the remainder not later than the 30th June, 1900.

"I trust you will agree with the view we have taken and agree to settle on these terms, in which case  you  can use the cipher words given in your letter to me of 3rd April, 1905.

"Yours, sincerely,

"H. A. MCPHERSON.

"P. S. I have omitted to say that the adjustment of balance of C.  B. & Co. in liquidation mentioned in the account arises from the following memorandum from Cassells, which seems to us to be correct:

" 'In a balance of C. B. & Co.,  in liq. dated 31st March, 1908, I find that J. T. C. has a credit balance of $660.80, and J. H. G. a debit of $2,616.51, therefore I have to be credited with the $660.80 plus 1/3 of ($2,616.51 660.80) $1,955.71, say $651.90 or in all $1,312.70.'

"J. GRINDROD, ESQ., Iloilo."

"LONDON, June 30th, 1905.

"DEAR GRINDROD: Referring to my letter of yesterday, Patterson very properly points out that I should have added that of course when you have settled up with Cassells on the terms suggested the lighters will then be your property, and that  also any amounts  recovered from  Alvarez and others in suspense will have to  be divided equally between you and Cassells, less expense.

"Yours, very truly,

"H. A. MCPHERSON."

To this the following answer was sent:

"ILOILO, 18th August, 1905.

"MY DEAR MCPHERSON: I now beg to thank you for your letters of 22nd March, 22nd and 29th June, with view of what I should pay Cassells.  In reference to this I herein hand you documents showing that Bassons' ac/ in balance sheet of 30th April, 1897, was really Alvarez's ac/.

"On receipt of your letter  of 22d March I called upon Bethell-Jones  who  desired me to await further advices from you, saying that he would  advise you to this effect.

"Last mail yours of 22nd and 29th June came to hand of which I duly advised Bethell-Jones.  I am now extremely obliged to both Patterson and yourself for your kindly interest in aiding a settlement of Cassells and my unfortunate affairs, which you have brought to a point pending further documentary proof that Bassons' ac/ in April. 1897, balance  sheet really should have been in  the name of E. Alvarez, against whom  I now have a judgment for 32,785.25, Conant.  I now submit following documents for Patterson's and your further guidance, viz:

"No. 1, Bassons' actual contract with Cassells, Buchanan & Co.

"No. 2. Bassous' letter of 1st May, 1897, correcting a journal debit of 27th April, 1897.

"No. 3. Bassons' letter of 14th inst. re sale of his debt and good will to Alvarez.

"No. 4. Buchanan's chit  re Alvarez ac/ being  part of Cassells, capital withdrawn from Cassells,  Buchanan & Co.

"No. 5. My actual circular re continuation of C. B. & Co.'s  business.

"No. 6.  Copy of Alvarez' second agreement showing that he still worked the hacienda Esperanza, rented  from Da. Julita Villanueva, which was the same estate he took over from  Bassons.  The 1st agreement is in Juzgado Bacolod but Cassells lias a copy of it in my handwriting.

"Re termination of our contract I  have always considered it expired  on 31st March, 1900, but under no circumstances could  it pass  September,  1902, when Cassells' representative here refused to take over the whole  thing from  me.

"Re lorchas, you have details but I don't think I could get 10,000 to-day for the three.

"Re your P.S., Cassells apparently wishes to increase my debit balance by  1/3.  Buchanan who is equally interested is quite satisfied  that there has  been no mistake. The liquidation of C. B. & Co. went through my books and any balances in my name went up or down in accordance with compromises of liquidation.  At this moment there is a case in the Supreme Court for P6,000 against  us, which I am defending.  There is also Serra's debt, which is  being looked after.

"Thanking you for the consideration extended to us and hoping the enclosed information will  satisfy your doubts as to my liability for the Bassons-Alvarez debt.

"Yours, sincerely,

"J. H.  GRINDROD."

No reply had been received to this communication when on November 7, 1905,  Grindrod died.  His will contained the following clause :

"It is my  desire that all my differences with Sr. J.  T. Cassells pending at the present  time the decision of the arbitrators in London, England, shall be adjusted in the most amicable manner possible,  even though in so doing it shall become necessary to turn over the three lighters belonging  to me called Isabela., Rosario, and Paquita,  in order to settle any claim made  by the  said Cassells. I therefore charge my executors to put an end to this matter by accepting the decision of the arbitrators as final."

Beyond the defect of form in the award sufficient to prevent it from taking effect over an objection of one  of the parties, we are of the opinion that by its terms it was expressly made conditional on acceptance by the defendant's testator,  which he never gave, but on the contrary he withheld^  forwarding documents on the lack of which the arbitrators had commented and which logically tended to change  their tentative conclusion.  Nor does the sixth clause of his will serve as an acceptance of what he had already refused.  It mentions the arbitration as then "actually pending" and suggests a disposition of the lighters not in accordance with the proposed award.

The first claim of the plaintiff was properly rejected and the first assignment of error based on its rejection is overruled.  The  second assignment of error  was the receipt in evidence of a corrected balance of accounts in Grindrod's handwriting, dated December 31, 1004, and understood  to be a copy of one sent by him to the plaintiff.  This account was made up after the closing of the books, and as a declaration of the deceased in his own favor and not a part  of the res gesta would have been inadmissible, were it not that the witness Figueras, with the books  of account before him, verifying the items  herefrom, pronounced it correct, thereby rendering it admissible as a part of his testimony.

The testimony of Figueras also helps to dispose of the third assignment of error, to the effect that the  court erred in not  admitting proof as to the manner in, which certain accounts, other than what is known as the Bassons- Alvarez account, were treated by Grindrod.  He makes it plain that the new accounts,  opened during the existence of the second partnership, were firm assets,  but that the proceeds of the accounts of the old firm, other than certain specified ones, had been remitted as individual property, when collected, to the plaintiff,  who  had received in principal and interest much more  than his contributions to the capital of the firm.

This renders it unnecessary to take up for interpretation the terms of the letter  which constituted the agreement of partnership which, not clear in themselves, are best read in the light of the acts of the parties.

The charging of the Bassons-Alvarez account, amounting to P31,677.10 to Cassells as his  sole property rather than to the  firm,  was consistent  with  this  explanation, and the keeping of it alive  by  entries of running payments and advances appears to have been for his benefit as the most probable method of avoiding a loss.  As this account ultimately remained uncollected it was properly charged to him rather than to both the partners.

The minutes of the trial show that it was repeatedly stated by counsel for the defendant that no question remained in the case except that of the Bassons-Alvarez account, and that the judge proceeded upon this theory. Although no  express  assent to this view appears therein on the part of the plaintiff, yet we do not think that  he made his opposition to it upon the trial sufficiently plain to enable him  to raise some of the minor questions treated in the  brief before us.  In the English copy  of his brief occurs this statement:

"The question here at issue is substantially whether the estate of Grindrod should bear one-half the loss of what might properly be termed the Bassons-Alvarez account."

We must perforce accept this statement of his interpretation of what occurred at the trial, and in reliance thereon overrule the fourth assignment of error to the effect that the court erred in finding that the plaintiff had abandoned his other claims.

The trial judge also very properly rejected proof of any accounts not included in the claims passed upon by the committee of the estate.  (Code of Civil Procedure,, secs. 695 and 696.)

The judgment of the Court of First Instance is affirmed with the costs of this instance.   So ordered.

Arellano, C.  J.,  Torres, Johnson, Carson, and Willard, JJ., concur.