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months limitation. The time of the confirmation of the sale was uncertain, and, inasmuch as the six months, by the decree of March 18, 1886, was to run from the confirmation of the sale, the purchasers were put upon inquiry to see that the terin of six months was not varied by the decree of confirmation. If the purchasers had objected to the decree of confirmation because it destroyed the six-months limitation, they could either have asked the court not to insert such a provision, and, on its refusal, have appealed to this court, or have declined to be bound by the sale, on the ground that the new terms varied from those contained in the decree of sale. It was within the discretion of the court to abrogate the six-months limitation, the fund being substantially a fund in court. Brooks v. Gibbons, 4 Paige, 374; Burchard v. Phillips, 11 Paige, 70; Grinnell v. Insurance Co., 16 N. J. Eq. 283; Lashley v. Hogg, 11 Ves. 602; Hurley v. Murrell, 2 Tenn. Ch. 620. That being so, as the record does not show on what grounds the court acted, the presumption must be that it properly exercised its discretion. The first and third questions are answered in the affirmative, and the second question in the negative, and the judgment is affirmed.

(141 U. S. 557)

RECTOR V. LIPSCOMB.

(November 16, 1891.)

thereafter, without notice to the appellee, and on the single affidavit of appellant that the property was worth over $5,000, an appeal was allowed. Subsequently, and at the same term, the appellee filed in the circuit court a motion to set aside the order allowing an appeal, and, to sustain her motion, the affidavits of 16 citizens* of Hot Springs, among them the collector of taxes and sheriff and several real-estate brokers, showing that the value of the property was not to exceed $3,500, and probably not over $2,500. Upon this testimony the circuit court made an order setting aside and vacating the allowance of an appeal, with leave to the appellant to renew his motion therefor, and file additional affidavits as to the value of the property. Appellant took no further action. Prior, however, to the filing of this motion, the citation had been served on appellee, and the record filed in this court. The appellee now moves to dismiss the appeal on the ground that there is not $5,000 involved in the controversy. A. H. Garland and H. J. May, for appellant. John McClure, for appellee.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

The motion to dismiss the appeal must be sustained. Upon the entire testimony finally presented to the circuit court and transmitted in the record, original and

APPEAL JURISDICTIONAL AMOUNT-HOW DETER- supplemental, to this court, the proof is

MINED-AFFIDAVITS.

A bill to declare a trust in land was dismissed by the circuit court, and an appeal was allowed on complainant's affidavit that the property was worth more than $5,000. After the record was filed in the supreme court, the appellee

moved the circuit court to set aside the order allowing the appeal, and filed numerous affidavits that the land was worth less than $5,000, and upon this evidence the motion was granted. Appellant was present at the hearing, and made no objection to the court's jurisdiction, and was given leave to file counter-affidavits. By stipulation these matters, including the affidavits, were brought up by a supplemental record, and a motion was made to dismiss the appeal. Held that, although the case had passed from the circuit court's jurisdiction, and its action was without authority, yet the supreme court would consider the additional affidavits on the motion to dismiss.

Appeal from the circuit court of the United States for the eastern district of Arkansas. Dismissed.

Suit by Henry M. Rector against Matilda Lipscomb to declare a trust in lands, and to secure a conveyance thereof. Bill dismissed, and plaintiff appeals. Heard on motion to dismiss the appeal.

The facts of the case fully appear in the following statement by Mr. Justice BREW

ER:

On April 29, 1884, appellant filed his bill in the circuit court of the United States for the eastern district of Arkansas, alleging that he was the equitable owner of lot 10, in block 125, in the town of Hot Springs, Ark.; that the legal title stood in the name of defendant; and praying that she be adjudged a trustee for his benefit, and ordered to convey the premises to him. On the final hearing a decree was entered, dismissing the bill. Nearly two years

overwhelming that the value of the property did not exceed $5,000; and this positive testimony is reinforced by all that appears in the case in respect to its situation and condition. There is little room for doubt on this matter, notwithstanding the opinion of appellant that the property is worth over $5,000. It is not in the power of the circuit court to determine the extent and limits of our jurisdiction, for that is a matter which this court must finally decide for itself. The practice which is to be pursued, and the rules which are to control, have been clearly and fully stated by the chief justice in the recent case of Cattle Co. v. Needham, 137 U. S. 632, 11 Sup. Ct. Rep. 208, in which this court, while deciding that, where the value is not definitely determined by the pleadings or decree, it should generally be settled in the first instance by the circuit court upon notice and testimony, and not upon additional testimony here, also held that the showing made in that case in the circuit court by affidavits was not sufficient to establish a value in excess of $5,000, and therefore dismissed the writ of error. In this case, by a like showing, the value clearly did not exceed $5,000, and therefore we have no jurisdiction. This is not like the case of Gage v. Pumpelly, 108 U. S. 164, 2 Sup. Ct. Rep. 390, where the affidavits left the matter doubtful, and therefore we declined to dismiss the appeal which had been allowed by the circuit court. Nor is it sufficient answer to this that the circuit court had no power to set aside the order allowing an appeal after the appeal had been perfected and the record filed here, (Keyse v. Farr, 105 U. S. 265;) for, under the circumstances,

*560

it is no more than right that we should consider these subsequent affidavits. The appellant was present at the hearing of this motion. It does not appear that he raised any question as to the power of the court to entertain it, and he was giv en leave to file additional affidavits if he desired. All these matters, including the affidavits, are presented to this court by a supplemental record brought up by stipulation of parties. While the order setting aside the allowance of an appeal may have been ineffectual because the case had passed out of that into this court, yet these affidavits of value, one by the plaintiff and sixteen by the witnesses of the defendant, were all filed in that court, filed for the purpose of determining the right to an appeal, and have all come regularly before us, and are presented for our consid. eration. Although, in a doubtful case, we shall not disturb the ruling of a circuit court granting or vacating an appeal, yet, when we are fully satisfied that the amount in controversy is not sufficient to give us jurisdiction, we ought not to attempt an inquiry into the merits of the case which is sought to be appealed. Unless we exercise a supervising power over these matters, many cases might be thrust upon our consideration through the inattention of the trial court, or the mistake or wrong of the defeated party, which are not, in fact, within our jurisdiction. Upon the testimony which is called to our attention by the action of the circuit court and the certificate of the circuit clerk in such manner that we cannot shut our eyes to it, it is obvious that the amount in controversy is not sufficient to give us jurisdiction. Under the circumstances, it would be sacrificing substance to form, and assuming a jurisdiction which we do not have, to hold that because this testimony did not get before the trial court in time for its primary action it must be wholly ignored by us. It reaches us before we are called upon to act, and comes to us from that court. We hold that, under all the showing that is presented, the amount in controversy is not sufficient to give us jurisdiction, and therefore the appeal must be and is dismissed.

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1. A fire broke out in the hold of a vessel, and, in order to save her and her cargo, she was scuttled and sunk. She was afterwards raised at an expense of about $15,000, and the damage to the vessel and furnishing was found to be about the same in amount. An agreement was entered into between the owner and the insurance agents for adjusting the loss, which provided that such adjustment related only to the damage to the property covered, and did not apply to "any question that may arise for saving boat and cargo. "Proofs of loss made out on this basis were forwarded to the different companies, ac

companied by a statement that the insured would make further claim for the expense of raising the vessel. After a conference between the owner and a committee of the insurance companies, a paper was signed reciting that the loss and damage by fire which occurred to the vessel was adjusted for $15,364.78, (the exact sum covered by the proofs already furnished,) "payable, without discount, upon presentation of the policies to the several companies by the assured," In accordance therewith the sum was paid nearly two months before actually due by the terms of the policies, and receipts in full were given to the companies, respectively. Held, that parol evidence was admissible to show that this settlement referred only to the damage to the vessel, and that the expense of raising her was left open for future adjustment.

etc.

2. Although the payment of one-half the liability before it was due was a sufficient consideration for releasing the claim to the remainder, if so intended by the parties, yet parol evidence was admissible to show that it was not so intended, but was a mere waiver by the insurance companies.

3. A clause in the receipts reciting that the policies were thereby surrendered and canceled, and all claims thereunder forever waived, was not a contract, which would take the instrument out of the rule which admits parol evidence to show that a receipt expressed more than was intended, when such clause was inserted in pursuance of a provision in the policies that the insurer might, at its option, terminate the same upon notice to the insured, in which case the latter was entitled to a ratable proportion of the premiums for the unexpired term.

In error to the circuit court of the United States for the eastern district of Michigan. Affirmed.

Action by John W. Wickham, Jr., and others against the Fire Insurance Association, Limited, upon a policy of fire insurance. The question arises on a certificate of division of opinion between the circuit and district judges as to the admissibility of certain parol evidence. The evidence was admitted at the trial, and verdict and judgment were rendered for plaintiffs. Defendant brings error.

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The other facts in the case fully appear, in the statement by Mr. Justice BROWN: This case was brought before the court. upon a certificate of division of opinion between the circuit and district judges. The action was begun in November, 1884, upon two policies of fire insurance written by the Fire Insurance Association, defendant, upon the propeller St. Paul, of which defendants in error were owners, one of such policies being for $3,500, and the other for $1,500. On the same day actions were begun against six other insurance companies upon their policies on the same vessel, and an order was subsequently made that all the actions so commenced should abide the event and final determination of the one which the plaintiffs should elect to try. The following facts appeared upon the trial: In 1883 the plaintiffs, who were the owners of the propeller St. Paul, engaged in navigating the Great Lakes, obtained upon her fire insurance policies in 10 companies, to the amount of $40,000. Plaintiffs also had $45,000 of insurance by marine policies on the same vessel at the same time. In all of these policies save one, it was provided that, in case of loss by fire, the loss should be payable in 60 days after proofs of loss had been filed with the company. On November 10, 1883,

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not been paid any part of the cost of raising and saving the vessel; that before the commencement of this suit they demanded payment thereof, which was refused, the insurers denying liability therefor; and that the same remained unpaid.

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The defendant claimed that the payment* of the cost of repairs was made by way of accord and satisfaction of the plaintiffs' entire claim, and offered in evidence the following receipts:

"$1.344.42.

January 19, 1884.

"Received from the Fire Insurance Association of London, England, thirteen hundred and forty-four 42-100 dollars, it being in full of all claims and demands for loss or damage by fire which occurred on the 10th and 24th days of November, 1883, to property insured by policy No. 180,617. Buffalo, New York, agency, and in consideration of said payment said policy is hereby canceled and surrendered to said company, and all further claims by virtue of said policy forever waived. [Signed] "JOHN W. WICKHAM, Jr., "Managing Owner.

while on a voyage from the lower lakes to
Lake Superior, a fire broke out in the hold
of the vessel, and to save her and her car-
go she was scuttled and sunk, and the fire
thus extinguished. She was subsequently
raised, and brought to Detroit for repairs,
where she arrived on the 19th of Novem-
ber, and immediately began to discharge
her cargo. A few days thereafter, and
while her cargo was being unloaded, an-
other fire broke out in her hold, and she
was again sunk for the purpose of saving
her, and was afterwards raised at consid-
erable expense. On the 15th of December
a written agreement was entered into be-
tween the plaintiffs and the adjusting
agents of the several insurance companies
for the purpose of appraising the amount
of loss caused by these fires, with a stipu-
lation that the agreement should be "of
binding effect only as far as regards the
actual cash value of or damage to such
property covered by policies of said com-
panies issued at their various agencies.
It was further added that "the property
on which loss or damage is to be estimat-
ed and appraised is the hull of the pro-
peller St. Paul, including the tackle, awn-
ings, furniture, engine, and boiler connec-
tions, and appurtenances thereto belong- |
ing:" with a further memorandum, follow-
ing the signature of Wickham, but
preceding those of the insurance compa-
nies, that "this agreement does not apply
to or cover any question that may arise
for saving boat and cargo." The adjust-
ment under this agreement of the direct
loss by fire was completed December 26th,
and formal proofs of loss were also sent
to the several insurance companies in New
York, and were received in due course of
mail. The amount of the loss, according
to the report of the appraisers, exclusive
of the expense of raising and saving the
vessel and cargo thus adjusted, aggregat-
ed $15,364.78, and the amount propor-
tioned to the plaintiffs in error was $1,-
920.60. The adjusting agent, in sending
proof of loss to the companies, accompa-panies
nied the same with the following letter to
each of such companies:

"Buffalo, January 12, 1884.
"Gentlemen: I inclose herewith proofs,
John W. Wickham, Jr.. managing owner,
for loss and damage prop. St. Paul, which
I trust will be found satisfactory:
The claim as made covers only the loss
and damage by fire and water, as per
agreement, on the tackle, awnings,
apparel, furniture, etc., of.
And the appraisers' award on hull, en-
gines, mach'y, etc., of .....

Aggregating in all.............

1,735 08

13,629 70 $15,364 78

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"W. B. COMSTOCK.

"Per WICKHAM, Jr."

There was also a receipt indorsed upon the policy No. 180,617, as follows:

"January 19, 1884.

"In consideration of four 47-100 dollars return premium, the receipt of which is hereby acknowledged, this policy is canceled and surrendered to the Fire Insurance Association, Limited, of England. [Signed] "JOHN W. WICKHAM, Jr., "Managing Owner. "W. B. COMSTOCK.

"Per WICKHAM, Jr." A similar receipt for $576.18 was given by the plaintiffs to the defendant, in form precisely like the first, (except as to the number of the policy and the amount.) on account of the second policy issued by the association. Similar receipts, all of the same date, except two, which were a few days later, were given to the other comconcerned, all of which were put in evidence by the defendant. The receipt to the Mechanics' Fire Insurance Company was expressed to be "in full satisfaction of all claims and demands upon said company for loss and damage by fire," etc.; and "in consideration thereof said company is hereby discharged forever from all further claims by reason of said fire, loss, and damage, and said policy of insurance is hereby assigned, with all claim thereunder, to said company, and said policy is hereby canceled in full, and surrendered to said company. The receipt to the London & Liverpool & Globe Insurance Company was for a sight draft, "which, when paid, will be in full compromise and payment of all claims and demands upon said company for loss and damage by fire," etc. The receipts to the other companies did not differ materially from those given to the defendant com. pany.

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The defendant also put in evidence the following paper, signed by the plaintiffs, marked "Exhibit QQ:"

"New York, January 19th, 1884. "This is to certify that the loss and damage by fire which occurred on the 23rd

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209.

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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 in terested 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

*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]

“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. Wellmau."

A part of this paper was in the handwriting of Weitman.

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 makings the repairs to the steamer, necessitated directly by the fire, without discount, and would waive any rights they might have under the policies making the loss payable in 60 days from the time the proofs were furnished. The plaintiffs were never requested to compromise or release their claim for the expense of raising aud saving the vessel, nor was the release or compromise of such claim spoken of except by Wickham when he offered to settle, as hereinbefore 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 re ceipt 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 certificate of January 19th, (Exhibit QQ,) and the receipts and drafts herein before set forth?"

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Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

As we held in this case, on the motion to dismiss, (Association v. Wickham, 128 U. S. 426, 9 Sup. Ct. Rep. 113,) that the second question was improperly certified, and could not be answered, the only question now presented for decision is the first, namely: "On the facts stated in the foregoing record, was the parol testimony offered in evidence by the plaintiffs admissible to vary and contradict the certificate of January 19th, (Exbibit QQ,) and the receipts and drafts herein before set forth?" We have no disposition to overrule or qualify in any way the general and familiar doctrine enforced by this court in repeated decisions, from the case of Hunt v. Rousmanier's Adm'rs, 8 Wheat. 174, (decided in 1823,) to that of Seitz v. Refrigerating Mach. Co., 12 Sup. Ct. Rep. 46, (decided at the present term,) that parol testimony is not admissible to vary, contradict, add to, or qualify the terms of a written instrument. The rule, however, is subject to numerous qualifications, as well established as the general principle itself, among which are that such testimony is admissible to show the circumstances under which the instrument was executed, or that it was in fact without consideration.

It was not seriously contended in this case that the defendant was not legally liable upon its policies for the expenses, clearly incidental to the fire, of raising and saving the vessel, as well as for ther direct injury to the vessel in consequence of the fire, and if the plaintiffs were induced to settle their claims for one-half the amount that was due them, and there was no consideration for the relinquishment of the other half, this suit will lie for the recovery of the amount. The rule is well established that where the facts show clearly a certain sum to be due from one person to another, a release of the entire sum upon payment of a part is without consideration, and the creditor may still sue and recover the residue. If there be a bona fide dispute as to the amount due, such dispute may be the subject of a compromise and payment of a certain sum as a satisfaction of the entire claim; but where the larger sum is admitted to be due, or the circumstances of the case show that there was no good reason to doubt that it was due, the release of the whole upon payment of part will not be

This testimony having been introduced, the defendant offered evidence tending to Scontradict the same, and to show that the 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 55 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 60 days after the proofs of the loss were furnished to the insurance companies, and this was not earlier than January 14th. 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 was so understood and agreed by the parties. The defendant claimed that the certificate and apportionment of January 19th, 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 ques-considered as a compromise, but will be tion 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 $2,297.65, 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

treated as without consideration and void. As was said by Chief Justice WAITE in U. S. v. Bostwick, 94 U. S. 53, 67: "Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration;" although it was subsequently held in Baird v. U. S., 96 U. S. 430, that if the debt be unliquidated, and the amount uncertain, this rule does not apply. "In such cases the question is

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