The primary question in dispute between the parties was whether the note was intended to be included in the deliberation of the arbitrators and thereafter merged in the written award. There was no written submission, but the award recites that the matters in controversy were “concerning the Elmore Hosiery Mill of Lawndale, N. C.,” nor does the award undertake in express terms to declare the relationship of the parties to the note in controversy or undertake to establish any liability by virtue thereof. This Court has heretofore declared that “the award, both in substance and in form, must conform to the submission, and the arbitrators are inflexibly limited to a decision of the particular matters referred to them.” Geiger v. Caldwell, 184 N. C., 387, 114 S. E., 497. Many years ago it was held that a party may offer evidence as to whether a particular item was considered by arbitrators in the event the submission and award was not clear or explicit, touching the controverted items. Osborne v. Colvert, 86 N. C., 170; Farmer v. Wilson, 202 N. C., 775, 164 S. E., 356.
The evidence was conflicting upon whether the note was considered by the arbitrators or included in the award. Hence, it was proper to submit this phase of the case to the jury in order to ascertain the amount of the indebtedness. The trial judge clearly presented to the jury the issue of fact in the following instruction: “If you are satisfied from the evidence, and by its greater weight, that the plaintiff and the defendant entered into an arbitration agreement, appointed arbitrators, offered testimony with respect to their claims one against the other, that included in these claims was this note for $2,038.77, and that the arbitrators took the note into consideration in rendering their award, then the court charges you that it would be your duty to answer the first issue ‘No,’ because there would have been an accord and satisfaction.”
The defendant assigns for error exceptions to certain questions propounded witnesses, but the answers the witnesses would have given to the questions do not appear in the record. Therefore, such exceptions cannot avail. Rawls v. Lupton, 193 N. C., 428, 139 S. E., 835.
The defendant makes a motion for a new trial for newly discovered evidence. This motion is based upon the affidavit duly made by Mr. *788Rurnis, one of tlie arbitrators, wbo states therein that since the trial he has made an exhaustive search and has “found the original statements of claims by both parties, and data used by him, and sheets upon which calculations were made, in stating the account and contentions of the parties and the conclusions of the arbiters, and now has same in his possession available to the defendant appellant, and that said data shows conclusively that the note sued on by the plaintiff in this case was considered by the arbiters and included in their statement,” etc. There appears a statement of the account of the parties, but the affidavit does not disclose whether any of the data or papers referred to were signed by the plaintiff or the other arbitrator, or that either of them at any time admitted their correctness, expressly or by implication. Consequently, we must assume that these papers are ex parle memoranda, made by the arbitrator Burrus. If so, they merely corroborate his testimony as a witness and are, therefore, necessarily cumulative in character. A new trial is not warranted by this showing. Brown v. Sheets, 197 N. C., 268, 148 S. E., 233; S. v. Casey, 201 N. C., 620; Pridgen v. R. R., ante, 62.
No error.