The defendant having rested, the plaintiffs, in rebuttal, offered evidence tending to show that in January, 1884, Wickham went to New York; and that on the 18th of January, a meeting of the companies interested in the loss was held at the board rooms in New York, at which meeting Messrs. Wellman and Oakley were appointed a committee to confer with the plaintiffs in regard to such loss. Of this meeting Wickham had no notice and was not present. That on the following day Wickham met Wellman and Oakley, and was notified by them that they were appointed as such committee, and that the companies were ready and willing to pay the expenses of making the repairs occasioned by the fire, as set forth in proofs of loss herein before mentioned.

That Wickham called attention to the claim for raising and saving the vessel, stating that he expected to get a contribution to such expense from the owners of the cargo of the vessel upon a general average, and for the sake of settlement offered to share the balance of such expense with the fire insurers in the proportion that the uninsured interest in the steamer bore to the amount insured; that the committee replied that the companies were not liable for such expense, and that they had no authority whatever to consider the claim for raising and saving the steamer, and thereupon gave to Wickham the following paper, marked Exhibit PP, stating to him that the same was a record of the proceedings of the meeting at which they were appointed such committee, and that their

Statement of the Case.

authority was limited by the terms of the resolution adopted at such meeting and set forth in said exhibit and that they could not go beyond it or consider this claim for raising and saving the vessel even if they were disposed to do so. The paper referred to is as follows:

"EXHIBIT PP.

"Board Rooms, January 18, 1884.

Meeting of the companies interested in loss of propeller

$26,500 00

Mechanics', New York

Greenwich..

"Organized by Mr. Wellman, chairman.

"Communication from John M. Murray, adjuster, at Detroit, in relation to expenses incurred in saving propeller St. Paul. "On motion, duly seconded

"That the request of the assured to help him out is not granted, but the companies are recommended to pay the amount of claim as set forth in the proofs of loss. Carried. Meeting adjourned. "(Signed)

66

G. W. MONTGOMERY.

"On motion, the action of the meeting be referred to a committee of two for the purpose of conference with the owner. Carried.

"Chair appointed Mr. Oakley and Mr. Wellman."

A part of this paper was in the handwriting of Wellman. Plaintiff offered evidence tending to show that the committee further stated that the companies were satisfied with the adjustment and proofs of loss, and were ready and willing to pay the cost of making the repairs to the steamer, necessitated directly

Statement of the Case.

by the fire, without discount, and would waive any rights they might have under the policies making the loss payable in sixty days from the time the proofs were furnished. The plaintiffs were never requested to compromise or release their claim for the expense of raising and saving the vessel, nor was the release or compromise of such claim spoken of except by Wickham when he offered to settle, as herein before stated, which offer was declined by the committee, as above stated, upon the ground that they had no authority to consider the matter.

Plaintiffs also offered evidence to show that, at such interview, Mr. Oakley, in behalf of the Mechanics' Insurance Company, gave to Wickham a check for the amount of the loss adjusted as aforesaid against the company, being $960.30, and Wickham then signed the aforesaid receipt for that amount to the company; and after the receipts were signed and delivered, the paper, Exhibit QQ, was prepared under the direction of Oakley and given to Wickham to exhibit to the representatives of other companies, to show the amount of the adjusted loss which had been apportioned against the companies respectively.

The defendant objected to the introduction of this parol testimony as tending to contradict the receipts and drafts given in evidence and the certificate of January 19th, Exhibit QQ, showing the apportionment of the loss to be paid by the several companies, upon the ground that such evidence was not admissible in the absence of fraud, misrepresentation and mistake. These objections were overruled by the presiding judge, and the evidence was received and submitted to the jury.

Upon the question of the admissibility of this testimony, however, there was a difference of opinion between the Circuit and the District Judges; and the following question was certified for the opinion of this court: "On the facts stated in the foregoing record, was the parol testimony offered in evidence by the plaintiffs admissible to vary and contradict the certifi cate of January 19th, Exhibit QQ, and the receipts and drafts herein before set forth?"

This testimony having been introduced, the defendant offered evidence tending to contradict the same, and to show that the

Argument for Plaintiff in Error.

whole matter arising out of the loss was intended to be compromised and settled by what took place between the parties at the meeting in New York. There was no evidence that the agreement, Exhibit QQ, or the receipts and discharges executed by the plaintiffs, were obtained by any fraud or misrepresentation of the defendants or their agents. The amount thus paid to the plaintiffs upon the settlement in New York was the exact amount claimed in the proofs of loss, but it was paid about fifty-five days before the same was due and payable, as by the terms of all the policies, save one, the amount of the loss was not payable until sixty days after the proofs of the loss were furnished to the insurance companies, and this was not earlier than January 14. In the charge to the jury, the court instructed them that this payment before the amount became due was a good consideration for the settlement and discharge of the whole claim, if such settlement were actually made, and if it were so understood and agreed by the parties. The defendant claimed that the certificate and apportionment of January 19, together with the receipts and drafts, as a matter of law, showed a full settlement of the entire claim, and an accord and satisfaction thereof. The plaintiffs claimed that the settlement related solely to the loss covered by the proofs of loss, and was not intended to, and did not, embrace the claim for raising the vessel and cargo, and saving the same. The question what the parties intended by said settlement was submitted to the jury under the charge of the court, and upon such parol testimony and papers a verdict was rendered for the plaintiffs for the sum of $2297.65, and a judgment for this amount was accordingly entered. A second question was certified, as to whether the defendant was entitled to a verdict under the facts in said record therein set forth; but upon a motion to dismiss, this court held the question to have been improper. 128 U. S. 426.

Mr. C. I. Walker for plaintiff in error.

There was a good consideration for these receipts; contracts of cancelment and discharge and accord and satisfaction. Assuming that the insurance companies were liable for all the

Argument for Plaintiff in Error.

losses occasioned by fire, such losses were not payable until sixty days after the filing of proofs of loss in the offices of the several companies. These proofs were forwarded from Buffalo on Saturday, January 12, 1884, and could not have been received at the offices in New York before Monday, January 14. Most of the payments were made on the 19th of January, five days after such proofs of loss were filed, and fiftyfive days before any payments became due thereon. The last payments were made January 31, nineteen days after the filing of such notice, and forty-one days before the payments became due. The payment of the money in advance of its being due was a good consideration for the discharge of the entire claim; although the payments were for a much less sum than was actually due. Pinnel's Case, 5 Rep. 117; Brooks v. White, 2 Met. 283; S. C. 37 Am. Dec. 95; Smith v. Brown, 3 Hawks, 580; Boyd v. Moats, 75 Iowa, 151.

The plaintiffs, for the purpose of varying and contradicting the papers thus given in evidence by the defendants, introduced parol testimony, all of which was objected to by the defendants in the absence of fraud, misrepresentation and mistake.

There is really no conflict of authorities upon the general rule as to the introduction of parol testimony to affect written contracts. The doctrine, as very clearly stated by Judge Story, is as follows: "Parol evidence is not admissible to contradict, qualify, extend or vary written instruments, and the interpretation of them must depend upon their own terms." 2 Story's Eq. § 1531.

Nowhere has this doctrine been more clearly recognized than in the decisions of this court. In an early case, Chief Justice Marshall said: "It is a general rule, that an agreement in writing, or an instrument carrying an agreement into. execution, shall not be varied by parol testimony, stating conversations or circumstances anterior to a written instrument." Hunt v. Rousmanier, 8 Wheat. 174. See also Bank of the United States v. Dunn, 6 Pet. 51, 56; Brown v. Wiley, 20 How. 442, 447; United States v. Childs, 12 Wall. 232, 244, 245; Specht v. Howard, 16 Wall. 564; Burnes v. Scott, 117 U. S. 582; Boffinger v. Tuyes, 120 U. S. 198, 205.