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by the ninth section of the judiciary act, to confer upon the District Court the exclusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly co-extensive with the power conferred by the Constitution. In order, therefore, to determine the limits of the admiralty jurisdiction, it becomes necessary to ascertain the true interpretation of the constitutional grant. On that subject three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: (1) That the jurisdiction of the District Courts is not limited to the particular subjects over which the admiralty courts of the parent country exercised jurisdiction when our Constitution was adopted. (2) That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction according to the civil law and the practice and usages of continental Europe. (3) That the nature and extent of the admiralty jurisdiction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known which it is reasonable to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts.
Authority is conferred upon the libelants as the proprietors of the wharf and slip in question by the law of the State to charge and collect wharfage and dockage of vessels lying at said wharf and within the slip adjoining the wharf of the libelants.
Sufficient appears to show that the respondents are the owners of the barge named in the libel; that on the tenth of October, 1876, she completed a trip from the port of Baltimore for the port of New York, and that she took wharfage at the wharf or pier of the libelants, where she remained for eleven days. For the use of the berth occupied by the barge, the libelants charged thirty-four dollars and twenty cents as wharfage and dockage. Due demand was made and payment being refused, the libelants instituted the present suit, which is a libel in rem against the barge to recover the amount of that charge. Process was served, and the respondents appeared and excepted to the libel, and set up that process of condemnation should not issue against the barge for the following reasons: (1) Because no maritime lieu arises in the case for the matters set forth in the libel. (2) Because no lien in such a case is given for wharfage against boats or vessels by the laws of the State. (3) Because the law of the State referred to in the libel as giving a lien for wharfage is unconstitutional and void, for the following reasons: (1) Because it imposes a restriction on commerce. (2) Because it imposes a duty of tonnage on all vessels of the character and description of that of the respondents. (3) Because it discriminates against the boats or barges of persons who are not citizens of the State where the proprietors of the wharf reside.
Pending the proceedings in the District Court, the respondents presented a petition here, asking leave to move this court for a prohibition to the court below, forbidding the District Court to proceed further in the
Pursuant to said petition this court entered an order permitting argument upon the merits of the petition and directing that due notice be given to the libelants and the clerk of the District Court. Hearing was had in conformity to that order, and the case was held under advisement.
Power is certainly vested in the Supreme Court to issue the writ of prohibition to the District Court when that court is proceeding in a case of admiralty and maritime cognizance of which the District Court has no jurisdiction. 1 Stat. at Large, 81; U. S. v. Peters, 3 Dall. 129.
Where the District Court is proceeding in a cause not of admiralty and maritime jurisdiction, the Supreme Court cannot issue the writ, nor can the writ be used except to prevent the doing of something about to be done, nor will it ever be issued for acts already completed. Ex parte Christy, 3 How. 292; U. S. v. Hoffman, 4 Wall. 158.
Admiralty and maritime jurisdiction is conferred by the Constitution, and Judge Story says it embraces two great classes of cases-one dependent upon locality, and the other upon the nature of the contract.
Damage claims arising from acts and injuries done within the ebb and flow of the tide have always been considered as cognizable in the admiralty, and, since the decision in the case of The Genesee Chief, it is considered to be equally well settled that remedies for acts and injuries done on public navigable waters, not within the ebb and flow of the tide, may be enforced in the admiralty as well as for those upon the high seas and upon the coast of the sea.
Speaking of the second great class of cases cognizable in the admiralty, Judge Story says, in effect, that it embraces all contracts, claims and services which are purely maritime, and which respect rights and duties appertaining to commerce and navigation. 2 Story on Const., § 1666.
Public navigable waters, where inter-state or foreign commerce may be carried on, of course, include the high seas, which comprehend, in the commercial sense, all tide-waters to high-water mark.
Maritime jurisdiction of the admiralty courts in cases of contracts depends chiefly upon the nature of the service or engagement, and is limited to such subjects as are purely maritime, and have respect to commerce and navigation within the meaning of the Constitution.
Wide differences of opinion have existed as to the extent of the admiralty jurisdiction, but it may now be said, without fear of contradiction, that it extends to all contracts, claims and services essentially maritime, among which are bottomry bonds, contracts of affreightment, and contracts for the conveyance of passengers, pilotage on the high seas, wharfage, agreements of consortship, surveys of vessels damaged by the perils of the seas, the claims of material men and others for the repair and outfit of ships belonging to foreign nations or to other States, and the wages of mariners, and also to civil marine torts and injuries, among which are assaults or other personal injuries, collision, spoliation and damage, illegal seizures or other depredations on property, illegal dispossession or withholding of possession from the owners of ships, controversies between the part owners as to the employment of ships, municipal seizures of ships, and cases of salvage and marine insurance. Conkl. Treatise (5th ed.), 254.
Wharf accommodation is a necessity of navigation, and such accommodations are indispensable for ships and vessels and water-craft of every name and description, whether employed in carrying freight or passengers, or engaged in the fisheries. Erections of the kind are constructed to enable ships, vessels and all sorts of water-craft to lie in port in safety, and to facilitate their operation in loading and unloading cargo, and in receiving and landing passengers.
Piers or wharves are a necessary incident to every well-regulated port, without which commerce and navigation would be subjected to great inconvenience, and be exposed to vexatious delay and constant peril.
Conveniences of the kind are wanted both at the port of departure and at the place of destination, and the expenses paid at both are everywhere regarded as properly chargeable as expenses of the voyage. Commercial privileges of the kind cannot be enjoyed where neither wharves nor piers exist, and it is not reasonable to suppose that such erections will be constructed for general convenience unless the proprietors are allowed to make reasonable charges for their use.
Compensation for wharfage may be claimed upon an express or an implied contract, according to the circumstances. Where a price is agreed upon for the use of the wharf, the contract furnishes the measure of compensation, and when the wharf is used without any such agreement, the contract is implied, and the proprietor is entitled to recover what is just and reasonable for the use of his property and the benefit conferred.
Such erections are indispensably necessary for the safety and convenience of commerce and navigation, and those who take berth alongside them to secure those objects derive great benefit from their use. All experience supports that proposition, and shows to a demonstration that the contract of the wharfinger appertains to the pursuit of commerce and navigation. Instances may, doubtless, be referred to where wharves are erected as sites for stores and storehouses, but the great and usual object of such erections is to advance commerce and navigation by furnishing resting-places for ships, vessels, and all kinds of watercraft, and to facilitate their operation in loading and unloading cargo and in receiving and landing passengers.
Nor is the nature of the service or the character of the contract changed by the circumstance that the water-craft which derived the benefit in the case before the court was without masts or sails or other motive power of her own. Sail ships, and even steamships and vessels, are frequently propelled by tugs, and yet, if they secure a berth at a wharf or in a slip at the place of landing or at the port of destination, and actually occupy the berth as a resting-place or for the purpose of loading or unloading, no one, it is supposed, will deny that the ship or vessel is just as much liable to the wharfinger as if she had been propelled by her own motive power.
Neither canal boats nor barges ordinarily have sails or steam power, but they usually have tow-lines, and it clearly cannot make any difference, as to their liability for wharfage, whether they are propelled by steam or sails of their own, or by tugs or horse or mule power, if it appears that the boat or barge actually occupied a berth at the wharf or slip at the commencement or close of the trip as a resting-place, or for the purpose of loading or unloading cargo, or for receiving or landing passengers.
Goods, to a vast amount, are transported by such means of conveyance, and all experience shows that boats of the kind require wharf privileges as well as ships and vessels or any other water-craft engaged in navigation. The Northern Belle, 9 Wall. 328.
Access to the ship or vessel rightfully occupying a berth at a wharf, for the purpose of loading and unloading, is the undoubted right of the owner or charterer of such ship or vessel for which such right has been secured. Wendell v. Baxter, 12 Gray, 496.
Privileges of the kind are essential to the carrier by water, whether he is engaged in carrying goods or passengers.
Repairs to a limited extent are sometimes made at the wharf, but contracts of the kind usually have respect to the voyage and are made to secure a restingplace for the vessel during the time she is being loaded or unloaded. Such contracts, beyond all doubt, are maritime, as they have respect to commerce and navigation, and are for the benefit of the ship or vessel when afloat.
Carrying vessels would be of little or no value unless they could be loaded, and they are usually loaded from the wharf, except in a limited class of cases where lighters are employed, the vessel being unable to come up to the wharf in consequence of the shoalness of the water.
Accommodations at the port of destination are equally indispensable for the voyage as those at the port of departure. Consignments of goods and passengers must be landed, else the carrier is not entitled to freight or fare. Where the contract is to carry from port to port, an actual delivery of the goods into the possession of the owner or consignee or at his warehouse is not required in order to discharge the carrier from his liability. He may deliver them on the wharf, but to constitute a valid delivery there the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods or to put them under proper care and custody. Delivery on the wharf, under such circumstances, is valid if the different consignments be properly separated, so as to be open to inspection and conveniently accessible to their respective owners. The Eddy, 5 Wall. 495.
These remarks are sufficient to show that wharves, piers, or landing-places are well nigh as essential to commerce as ships and vessels, and are abundantly sufficient to demonstrate that the contract for wharfage is a maritime contract for which, if the vessel or water-craft is a foreign one or belongs to the port of a State other than the one where the wharf is situated, a maritime lien arises against the ship or vessel in favor of the proprietor of the wharf.
Standard authorities, as well as reason, principle, and the necessities of commerce, support the theory that the contract for wharfage is a maritime contract, which in the case supposed gives to the proprietor of the wharf a maritime lien on the ship or vessel for his security.
From an early period wharf-owners have been allowed to exact from ships and vessels using a berth at their wharves a reasonable compensation for the use of the same, and the ship or vessel enjoying such a privilege has always been accustomed to pay to the proprietor of the wharf a reasonable compensation for the use of the berth. The Kate Tremaine, 5 Ben. R. 611.
Ancient codes and treatises, such as are frequently
recognized as the source from which the rules of the maritime law are drawn, usually treat such contracts as maritime contracts, for which the ship or vessel is liable. The Maggie Hammond, 9 Wall. 452; DeLovio v. Boit, 2 Gall. 472.
Charges for wharfage were adjudged to be lien claims in the District Court of the Third Circuit more than seventy years ago, and in speaking of that case, Judge Story says that it seems to him that the decision was fully supported in principle by the doctrines as well of the common law as of the civil law, and by the analogous cases of materials furnished and repairs made upon the ship (Ship New Jersey, 1 Pet. Adm. R. 228; Ex parte Lewis, 2 Gall. 484), where it was expressly adjudged that the contract was necessarily maritime, giving as the reason for the conclusion that the use of the wharf is indispensable for the preservation of the vessel. Johnson v. McDonough, Gil. 103.
Other eminent admiralty judges have decided in the same way, and among the number the late Judge Ware, whose opinion in cases involving the question of admiralty jurisdiction is entitled to the highest respect. The Phoebe, Ware, 341; 2 Conkl. Adm. (2d ed.) 515; Bark Alaska, 3 Ben. 392; Hobart v. Drogan, 10 Pet. 120; The Mercer, 1 Sprague, 284; The Ann Ryan, 7 Ben. R. 21; Dunlap's Adm. 75; Abb. on Ship. (5th ed.) 423.
Water-craft of all kinds necessarily lie at a wharf when loading and unloading, and Mr. Benedict says that the pecuniary charge for the use of the dock or wharf is called wharfage or dockage, and that it is the subject of admiralty jurisdiction; that the master and owner of the ship and the ship herself may be proceeded against in admiralty to enforce the payment of wharfage, when the vessel lies alongside the wharf or at a distance and only uses the wharf temporarily for boats or cargo. Ben. Adm. (2d ed.), § 283.
Application for the writ of prohibition is properly made in such a case upon the ground that the District Court has transcended its jurisdiction in entertaining the described proceeding, and whether it has or not must depend not upon facts stated dehors the record, but upon those stated in the record upon which the District Court is called to act and by which alone it can regulate its judgment. Mere matters of defense, whether going to oust the jurisdiction of the court or to establish the want of merits in the libelants' case, cannot be admitted under such a petition here to displace the right of the District Court to entertain suits, the rule being that every such matter should be propounded by suitable pleadings as a defense for the consideration of the court, and to be supported by competent proofs, provided the case is one within the jurisdiction of the District Court. Ex parte Christy, 3 How. 308.
Congress has empowered the Supreme Court to issue writs of prohibition to the District Courts "when proceeding as courts of admiralty and maritime jurisdiction," by which it is understood that the power is limited to a proceeding in admiralty. Conkl. Treatise (5th ed.), 56. Such a writ is issued to forbid a subordinate court to proceed in a cause there, depending on suggestion that the cognizance thereof belongeth not to the court. F. N. B. 39; 3 Bl. Com. 112; 2 Pars. on Ship. 193; 8 Bac. Abr. 206.
Viewed in the light of these considerations it is clear that a contract for the use of a wharf by the master or owner of a ship or vessel is a maritime contract, and, as such, that it is cognizable in the admiralty; that such a contract being one made exclusively for
the benefit of the ship or vessel, a maritime lien in the case supposed arises in favor of the proprietor of the wharf against the vessel for payment of reasonable and customary charges in that behalf for the use of the wharf, and that the same may be enforced by a proceeding in rem against the vessel or by a suit in personam against the owner.
Many other questions were discussed at the bar which will not be decided at the present time, as they are not properly involved in the application before the court.
Petition for prohibition denied.
PRESUMPTION OF GOOD FAITH IN THE TRANSFER OF NEGOTIABLE PAPER.
SUPREME COURT OF THE UNITED STATES-OCTO BER TERM, 1877.
BROWN et al., plaintiffs in Error, v. SPOFFORD et al. Promissory notes payable to order may be transferred by indorsements, or when indorsed in blank or made payable to bearer they are transferable by mere delivery and the possession of such an instrument indorsed in blank, or made payable to bearer, is prima facie evidence that the holder is the proper owner and lawful possessor of the same; and nothing short of fraud, not even gross negligence, if unattended with mala fides, is sufficient to overcome the effect of that evidence or to invalidate the title of the holder, supported by that evidence.
Accordingly held that an agreement made at the time of the making or indorsement of a negotiable instrument was not admissible in an action upon such instrument by a bona fide purchaser for value before maturity. In such an action the settled commercial rule is that nothing less than prior knowledge of such facts and circumstances as impeach the title is available as a defense, unless it be shown that the instrument was fraudulent in its inception. To impeach the title of a holder for value, it must first be shown that he had knowledge of the circumstances at the time the transfer was made. Agreements unperformed cannot be pleaded in accord and satisfaction.
RROR to the Supreme Court of the District of Columbia. The facts appear in the opinion.
Mr. Justice CLIFFORD delivered the opinion of the court.
Sufficient appears to show that the plaintiffs claim to recover of the defendants the amount of five promissory notes, set forth in the record, each dated January 8, 1872, payable to the order of Austin P. Brown, in one, two, three, four and five months from date, amounting in the aggregate to the sum of eleven thousand three hundred and thirty-six dollars and sixtyfour cents. Due indorsement of the notes was made by the payee, and the plaintiffs also claim to recover the costs and fees of protest and notice to the makers for non-payment.
Service was made and the defendants appeared and pleaded the general issue, and two special pleas, which are fully set forth in the record.
Issue was joined by the plaintiffs upon the first plea of the defendants, and to the second plea the plaintiffs replied and denied the same in fact and in substance, and all and singular the matters therein set forth, and alleged in further reply that they became the holders of the notes in the regular course of mercantile dealings, for a full, fair, and valuable consideration, before the maturity of the notes and without any notice or knowledge of the matters set forth and alleged in the defendants' second plea. They also deny and traverse all the allegations and averments contained in the defendants' third plea.
Special pleas in such a case are unnecessary, as every such defense, where the action is assumpsit upon promissory notes, is admissible under the general issue. Delay ensued, and at a subsequent term the parties | went to trial and the verdict and judgment were in favor of the plaintiffs, in the sum of eleven thousand three hundred dollars and forty-seven cents, with costs and interest. Exceptions were taken by the defendants, as appears by the record.
Six notes, it seems, were given by the defendants, all of the same date, one of which was not due when the suit was instituted to recover the amount of the first five. On the second of August, 1872, the plaintiffs sued the other note, which was signed and indorsed like the other five, and was for the sum of twenty-two hundred and sixty-seven dollars and thirty-two cents for value received. Service was made and the defendants appeared and filed three pleas, of the same legal effect as those filed in the preceding case. Replications were also filed by the plaintiffs, of the same legal import as those which they filed in the suit to enforce payment of the first five notes. Proper issues being joined, the parties went to trial and the verdict and judgment were for the plaintiffs, in the sum of two thousand two hundred sixty-nine dollars and eightyfive cents, with costs and interest, as therein provided. Separate judgments were rendered in the two cases, but the defendants were allowed to file eight bills of exceptions to the rulings of the court in each of the cases, which were subsequently signed and sealed by the presiding judge, each of the bills of exceptions having respect to the trial in the respective suits as if the same had been previously consolidated and the verdicts had been rendered at the same time by the same jury. Both judgments were removed into this court by one writ of error.
Certain errors are assigned here as applicable to the judgment in each of the respective cases, in substance and effect as follows: (1) Evidence was offered by the defendants to prove the alleged agreement between them and the company, which was excluded by the court, and they assign for error that the court erred in excluding that evidence. (2) That the court erred in holding that the agreement between the company and the defendants offered in evidence would not affect the right of the plaintiffs to recover in the suits. (3) That the court erred in holding that if the plaintiffs received the notes before maturity, without notice of the alleged agreement, the defendants were liable in the action, even though the plaintiffs paid their own notes with money borrowed from the company, whose agents they were in the transaction. (4) That the court erred in instructing the jury that if they find from the evidence that the plaintiffs did not have notice of the alleged agreement between the company and the defendants, still they may recover in the actions if the jury further find that the defendants neglected and failed to comply with the terms of the agreement. (5) That the court erred in instructing the jury that the agreement to receive as a compromise in discharge of the notes a sum less than the amount of the same could only be made available as a defense by proving that the sum agreed was paid or tendered by the defendants as therein stipulated.
Exceptions not assigned for error will not be separately examined. Two of the errors assigned, to wit, the first and the second, are so nearly alike that they may be examined together.
Negotiable notes are written instruments, and as such they cannot be contradicted, nor can their terms be varied by parol evidence, and that proposition is universally true where the promissory note is in the hands of an innocent holder. Where a bill of exchange was drawn in the usual form and was protested for non-payment, the court held twenty years ago that parol evidence of an understanding between the drawer and the party in whose favor the bill was drawn, was inadmissible to vary the terms of the instrument. Brown v. Wiley, 20 How. 447.
In that case the defendant offered to prove to the jury, pursuant to the defense set up in a special plea, a parol agreement between him and the plaintiffs, that the bill should not be presented for acceptance until funds were furnished and placed in the hands of the drawees, to provide for a certain other draft, who had agreed to accept the second bill when funds were received to meet their liability for accepting the first bill, but the court below excluded the evidence and the defendant excepted, and this court decided that the ruling was correct and affirmed the judgment, holding that the evidence offered that the bill should not be presented until a distant, uncertain, or undefined period, tended in a very material degree to alter and vary the operation and effect of the instrument. Shankland v. Washington, 5 Pet. 394; 1 Greenl. Ev. (12th ed.), 318; Stackpole v. Arnold, 11 Mass. 30; Hunt v. Adams, 7 id. 521; Myrick v. Dame, 9 Cush. 254; Thompson v. Ketchum, 8 Johns. 192.
Certain fixed principles govern the liability of parties to a bill of exchange or promissory note which are essential to the credit and circulation of such paper, of which the most important is that whatever may have occurred between other parties to the instrument, if not fraudulent in its inception, the holder of the same, if he acquired it for value in the usual course of business before maturity, cannot be affected by any such transactions, unless it be first shown that he had knowledge of such transactions at the time the transfer was made. Nothing less than knowledge of such transactions can meet the exigencies of such a defense, the rule being that the bona fide holder of a negotiable instrument for value, if acquired before maturity and without notice of any facts which impeach its validity between the antecedent parties, has a good title to the instrument, unaffected by any such prior transaction, and may recover the amount even though the instrument, as between the antecedent parties, is without any legal validity. Goodman v. Simonds, 20 How. 364; Swift v. Tyson, 16 Pet. 15; Murray v. Gardner, 3 Walls. 119.
Attempt was made in a leading case to prove that the payee agreed with the indorser that if he would indorse the note he should incur no responsibility, as the payment was secured by collaterals, and when offered in the Circuit Court the evidence was admitted, but the court, when the case was brought here on writ of error, reversed the judgment, holding that the evidence should have been excluded. Banks v. Dunn, 6 Pet. 53.
Decided cases of the most authoritative character have determined that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsement of a bill or note, cannot be admitted to vary, qualify, contradict, add to, or subtract from, the absolute terms of a written contract. Specht v. Howard, 16 Wall. 566.
In the absence of fraud, accident, or mistake, the rule is the same in equity as at law, that parol evidence of an oral agreement, alleged to have been made at the time of drawing, making, or indorsing a bill or note, cannot be permitted to vary, qualify, or contradict, or to add to, or subtract from, the absolute terms of the written contract. Forsyth v. Kimball, 1 Otto, 294.
Parol evidence of an agreement made contemporaneously with a promissory note which contains an absolute promise to pay at a specified time is not admissible in order to extend the time for payment or to provide for the payment out of any particular fund, or in any other way than that specified in the instrument, or to make the payment depend upon condition. Chitty on Cont. (10th ed.) 39; Abrey v. Crux, Law Rep., 5 C. P. 41; Allan v. Furbish, 4 Gray, 506; 2 Pars. on Bills and Notes, 501.
Apply these rules to the case before the court and it is clear that the first and second assignments of error must be overruled, as it is clear that the evidence offered was inadmissible and that the ruling of the court was correct.
Due execution of the notes is admitted, nor is it questioned that they were indorsed in blank, as set up by the plaintiffs. Beyond all doubt the plaintiffs became the holders of the notes before maturity and for value, but the defendants insist that the plaintiffs did not become the holders of the same in good faith, nor in the regular course of business, and they requested the court to instruct the jury that if they believed that the plaintiffs came into the possession of the notes without paying value, or under circumstances which would have put a prudent man upon inquiry concerning the alleged agreement, then the jury must consider the plaintiffs bound by the agreement, and that their verdict should be for the defendants.
Three objections arise to that prayer for instruction, any one of which is sufficient to show that it was properly rejected: (1) Because the uncontradicted evidence showed that the plaintiffs did pay value for the notes. (2) Because the settled rule of law is that the plaintiffs, as the holders of the notes for value, and having acquired the same before maturity and in the usual course of business, or without notice of any prior equities, have a good title to the same irrespective of what may have transpired between the defendants and prior holders of the notes. (3) Because there is no evidence in the case that the plaintiffs had knowledge of any equities between the defendants and such prior parties, the settled commercial rule being that nothing less than prior knowledge of such facts and circumstances as impeach the title can meet the exigencies of such a defense, unless it be shown that the instrument or instruments were fraudulent in their inception.
Where the supposed defect or infirmity in the title of the instrument appears on the face at the time of the transfer, the question whether the party who took it had notice or not is in general a question of construction, and must be determined by the court as matter of law, as has been held by this court in several cases. (Andrews v. Pond, 13 Pet. 65; Fowler v. Brantly, 14 Pet. 318.) But it is a very different thing when it is proposed to impeach the title of a holder for value by proof of any facts and circumstances outside of the instrument itself. He is then to be affected, if at all, by what has occurred between other parties, and he may well claim an exemption from any consequences
flowing from their acts, unless it be first shown that he had knowledge of such facts and circumstances at the time the transfer was made. Goodman v. Sionds, 20 How. 366; Collins v. Gilbert, 4 Otto, 758.
Tested by these authorities it follows that the third assignment of error must be overruled.
Both the fourth and the fifth assignments of error have respect to the supposed compromise which it is alleged was proposed and adopted, and inasmuch as they relate to the same state of facts they will be examined together.
Parties may doubtless adjust their controversies, and where they do so in good faith and understandingly, courts of justice will uphold the adjustment, unless it violates the rules of law applicable to the transaction. Suppose that is so, still it is clear the alleged compromise was never carried into effect. What was proposed is that the notes were to be delivered up upon the payment of a prescribed amount at the time and in the manner set forth in the agreement, but nothing was ever paid or tendered, nor was any thing ever done in fulfillment of the agreement. Instead of that the evidence shows that the defendants never made any attempt to make the payments, and the court instructed the jury that if they found that the agreement of compromise was never carried out by the defendants that it constitutes no defense to the action; that such a compromise can only be made available to the defendants as a defense by proving that the sums agreed to be paid in discharge were paid or tendered as stipulated. Formal exceptions were taken to those instructions, and they are the basis of the errors alleged in the fourth and fifth assignments.
Sufficient appears to show that the indebtedness of the defendants amounted to the sum of thirteen thousand six hundred and three dollars and ninety-six cents, and that the plaintiffs agreed to accept ten thousand dollars as a compromise, "upon the payments being made at the times stated," from which it is evident that nothing short of the fulfillment of that agreement would discharge the original demand, and that such a compromise, to be available, must be performed. 2 Pars. on Cont. (6th ed.) 685; 2 Story on Cont. (5th ed.) 537; Chitty on Cont. (10th ed.) 693.
Agreements unperformed cannot be pleaded as accord and satisfaction. U. S. v. Clark, Hemp. R. 317. Where a creditor agreed to satisfy a judgment for a less sum than the amount recovered, if paid by a day certain, and the debtor failed to make the payment, it was held that the creditor might enforce the judgment for the full amount. Early v. Rogers, 16 How. 608.
Performance of the agreement by the judgment debtor, it was held in that case, was a condition precedent to the proposed reduction of the judgment, and the court said: "We think the district judge interpreted the agreement of the parties and the judgment correctly, as the parties made the reduction dependent on a condition which has not been fulfilled."
Where an arrangement was made for the discharge of certain notes, but the arrangement failed because one of the debtors disagreed to the terms of the composition, the court decided that the debt stood revived, and that judgment was properly rendered for the whole amount. Clark v. Brown, 22 Wall. 273; Addison on Cont. (6th ed.) 996.
Two other exceptions were taken at the trial, in respect to which it is only necessary to say that they