# Opposition Brief — Chicago, M. & St. PR Co. v. Clark > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0512%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1900 - **Citation:** 178 U.S. 353 ## Text Jn the Supreme Eourt of the Rnited States. OCTOBER TERM, 1898, No. 773. THE CHICAGO, MILWAUKEE AND St. Pact Rattway Company, Petitioner, against HEMAN CLARK, Respondent. Brief for respondent in opposition to application for certiorari to the Circuit Court of Appeals for the Sec- ond Circuit. This application is made on behalf of the peti- tioner to review a decision by the Circuit Court of Appeals for the Second Circuit, in favor of the re- spondent, and against the petitioner, affirming a judgment of the Circuit Court for the Southern District of New York, entered upon the report of a Referee in favor of the respondent and against the petitioner for the sum of $88,084.86. The recovery had by the respondent was for a balance due under a written contract entered into between the parties for the building of a railroad by the respondent for the petitioner for the sum of $3,954,600. \ 2 After the completion of the work, the Chief Engi- neer made a final certificate, in accordance with the terms of the contract, bearing date March 3d, 1888, by which he certified that it was a final estimate of the amount and value of the work done and ma- terials used in building the railroad, which had been ‘‘ constructed, built, completed and finished, in all respects, in conformity with the agreements of said contract, except as the said Railroad Company, party of the first part, has, by agreement with said Clark, assumed the construction and completion thereof.” He then certified the amount due; As per contract price $3,954,600 From which deductions were made by him, amounting to 104,372 77 Leaving a balance of, $3,850,227 23 To which he added for items not covered by contract, etc., 45,571 56 Making a total due to the respond- ent of $3,895,798 79 See Record, pages 197-203. To this amount, as certified by the engineer, the petitioner credited the respondent for materials sold by him to it, and for certain re- bates and other matters, the sum of, 34,598 90 Making the sum of $3,930,397 69 There was no dispute in this case, but that that amount due the respondent had never been fully paid to him, unless by the transactions evidenced by a receipt signed by him on March 9th, 1888. This receipt, and it alone, it was claimed by the peti- tioner before the Referee and in the Court below, was a bar to any recovery by the respondent in this action. 3 The respondent, on the other hand, claimed that it was no bar, because the difference between the amount earned and the amount paid, amounting to $71,057.63, had never been released or discharged by him and was still due and owing. The sum of $71,057.63 claimed by the respondent was made up of the following items: ist. Deductions made by petitioner for nutlocks furnished by it to respondent and used by him in the construction of the road, the amount not being ques- tioned, only the liability, $9,558 63 2d. Deductions made by petitioner for non-completion of the railroad on the Ist day of June, 1887, in accordance with an alleged supplemental contract entered into between the parties, 40,000 00 3d. Deductions made by petitioner for moneys paid to subcontractors without right during construction, in all, 21,449 00 Making a total of $71,057 63 Of this amount the Referee refused to allow the petitioner — ist. The deduction for nutlocks, $9,558 63 2d. The deduction for the forfeiture withheld by the petitioner for not completing in time, 40,000 00 The only defense to the recovery of these items by the respondent was the interposition by the petitioner of the receipt as a bar. The only other item allowed by the Referee was the claim of the respondent under his fifth cause of action, to wit, $2,425 for timber belonging to him, converted by the petitioner to its own use, which claim was not covered by the receipt. 4 It will be urged in the following argument that the petitioner has not brought itself within the statute allowing writs of certiorari from this Court to the Circuit Courts of Appeal, nor within the well-established rules laid down by this Court in its decisions as to the issuance of such writs. ist. Because the case affects no public interest, but simply private rights. 2d. Because there is no conflict betwven the de- cision in this case and those of this Court and of the State courts; but, on the contrary, the decision in this case is in direct line and full accord with the decisions both of this Court and of the State courts. 3d. Because the real ground of complaint by the petitioner is that the Circuit Court of Appeals did not apply the true rule of the decisions under the facts found by the Referee, and therefore the question sought to be reviewed by this Court is not as to what the law is, but whether upon the partic- ular facts in this case well-settled legal principles were properly applied. 4th. Because no request was made by the peti- tioner for a full bench on the argument in the Court below. Point I. The power of this Court in certio- rari will only be exercised where the importance of the questions in- volved, the necessity of avoiding con- flict between two or more courts of appeal, or between courts of appeal . 5 and the courts of a State, or some matter affecting the interest of the nation in its internal or external re- lations, demands such exercise. e In almost every case where an application such as the one now made, is either granted or refused, this Court takes occasion to say that the power of the Court to issue a writ of certiorari to the Circuit Court of Appeals, ‘‘should be exercised sparingly and with great caution.” Ex parte Lau Ow Bew, 141 U. S., 583. Ex parte Woods, 143 U. §., 202. Chicago and Northwestern R. R. Co. v. Osborn, 146 U. S., 354 American Construction Co. v. Jackson- ville T. K. W. R. Co., 148 U. S., 372. Forsyth v. Hammond, 166 U. S., 506. The rule of this Court in respect to certioraris to the Circuit Court of Appeals is stated by Mr. Jus- tice Brewer, speaking for the Court, in Forsyth v. Hammond (supra), as follows: ‘‘So it has been that this Court, while not doubting its power, has been chary of action in respect to .certioraris. It has said, ‘It is evident that it is solely questions of gravity and importance that the Circuit Courts of Appeals should certify to us for instruction; that it ' is only when such questions are involved, that the power of this Court to require a case in which the judgment and decree of the Court of Ap- peals is made final to be certified, can be properly invoked.” Ha parte Lau Ow Bew, 141 U. S., 583- 587. Ea parte Woods, 143 U.S., 202. Lau Ow Bew v. U.S., 144 U. S., 47-58. Am. Cons. Co. v. Jacksonville, T. and K. W. R. Co., 148 U. S., 372- 383. * * * ‘We reaffirm in this case the prop- ositions heretofore announced, to wit, that the power of this Court in certiorari extends to every — 6 case pending in the Circuit Courts of Appeal, and may be exercised at auy t'me during such pend- ency, provided the case is one which, but for this provision of the statute, would be finally deter- mined in that court. And further, that while this power is coextensive with all possible necessities, and sufficient to secure to this Court a final control over the litigation in all the Courts of Appeal, it is a power which will be sparingly exercised, and only when the circumstances of the case satisfy us that the importance of the questions involved, the necessity of avoiding conflict between two or more Courts of Appeal, or between Courts of Appeal and the Courts of the State, or some matter affecting the interests of this nation in its internal or exter- nal relations, demands such exercise.” Forsyth v. Hammond, 166 U. S., 506. Point II. There is no conflict between the decision in the case at bar and the decisions of this Court, and of the other Circuit Courts of Appeal and of the State Courts, but, on the con- trary. the legal principles applied by the Court below are in direct line and full accord with the decisions of this Court and of the other Circuit Courts and of the State Courts. First. —The legal principles applved by the Court below in deciding this case are, as stated in the opinions delivered by the learned Judges, as follows: 7 (A). An agreement, which is known to the law as ‘*accord and satisfaction,” is a contract, and like all other contracts it needs a consideration to make it valid; without consideration it is nudum pactum. (B.) A receipt in full, and payment of the balance stated therein, cannot be sustained as an accord and satisfaction, unless some benefit was thereby secured to the creditor, which, but for the settle- ment, he would not have had. (C). Payment by a debtor of a liquidated amount, presently due, and to which he has no defense that can be urged in good. faith or with color of right, is not by itself a sufficient consideration to sustain the release by the creditor of other liqui- dated claims against the debtor. See Opinion Judge Lacombe. (D). A promise by a creditor, having a liquidated and undisputed demand against his debtor, which is wholly due and payable, to discharge the residue upon receiving payment of a part, is, according to all authorities, nudum pactum and totally inopera- tivé, because the debtor is under a legal obligation to pay the whole demand. A demand is not a disputed demand, simply be- cause the debtor refused to pay or recognize it, for if this were true, no case would ever arise for the application of the rule. It is disputed within the meaning of the rule only when it is so far disputed as to presenta ‘* proper case for litigation.” (EZ). In a case where the creditor having two un- disputed and liquidated demands against the debt- or, and the latter claiming to have cross-demands or counterclaims against the creditor, refuses to pay the creditor’s demands unless the validity of the 8 cross-demands is acknowledged and their amount allowed to him by the creditor, the promise to al- low the whole amount of the cross demands has no consideration to sustain it, because in contempla- tion of the law no benefit could accrue to the prom- isor and no injury to the promisee. The promisor derives no benefit because he allows the whole; the promisee is not injured because he relinquishes nothing. See Opinion Judge Wallace. These rules and principles of law, it is submitted, are well settled and quite elementary. They are the rules upon which decision of this case was based in the Court below. ’ It is hardly necessary to say that they are notin conflict with the decisions of this Court nor of other Circuit Courts of Appeal nor of the State Courts. In fact, the true ground of complaint on the part of the petitioner is not as to the rules of law laid down by the Circuit Court of Appeals, but that the facts shown in this case do not bring it within their application. What this Court is asked to do is not really to re- solve a conflict in the law, but rather to determine whether, upon the facts in this case, well-settled le- gal principles were properly applied. As said by Mr. Chief Justice Fuller in ex parte Woods (supra), the power under Section 6 of the Act of March 8d, 1891, *‘Could only be properly in- ‘“voked * * * when questions of gravity and ‘* importance were involved. ‘* This must necessarily be so, in any view, and ‘‘ especially when it is considered that the Circuit ‘* Courts of Appeal were created for the purpose ‘* of relieving this Court of the oppressive burden ‘‘of general litigation which impeded the ex- ‘* amination and disposition of cases of public con- ‘** cern and delayed suitors in the pursuit of justice. “But in the interest of jurisprudence and uni: ‘* formity of decision, to use the language of the emi- ‘* nent jurist and statesman who had charge of the ‘* bill, provision was made under Section 6 for such ‘‘ supervision on our par: as would tend to avert ** diversity of judgments and guard against inad “ vertence of conclusions in controversies involv- ‘ing weighty and serious matters.” Ex parte Woods, 143 U. S., 202. It is respectfully submitted that as there is no ques- tion in this case of an erroneous decision on a ques-. tion of law by the Court below, but only whether the peculiar facts in this cage brought it within well-set- tled legal principles, the action being simply between individuals respecting personal and private interests, no questions of gravity and importance were in- volved within the meaning of the statute; nor is a review of the decision necessary in the interest of jurisprudence and uniformity of decision, nor to avert diversity of judgments and guard against in- advertence of conclusions in controversies involv- ing weighty and serious matters. Point III. The legal principles above enunci- ated were properly applied by the Court of Appeals to the facts in the case at bar. First.—The wholé issue in this case, both upon the law and upon the facts, was referred to a Referee to hear and determine: In such cases, as said by Judge Lacombe, the tule laid down by this Court is as follows: ‘* As the Court in its judgment ordered his findings to stand 10 as the findings of the Court, the only questions before this Court are whether the facts found by theJReferee sustained the judgment. ** As the case was not tried by the Circuit Court upon a waiver in writing of a trial by a jury, this Court cannot review exceptions to the admission or exclusion of evidence or of findings of fact by the Referee or of his refusal to find facts as requested.” Shipman v. Straitsville Mining Co., 158 U. S., 361. Roberts v. Benjamin, 124 U. S., 64 The only question, then, which was open to the Circuit Court of Appeals for review, was whether or not the facts found by the Referee supported the judgment rendered. Seconp.—As already said in the statement, two items only, claimed by the respondent to have been erroneously deducted from the amount earned by him under his contract, were allowed by the Referee. 1st. A claim for nutlocks, $9,558 63 2d. A deduction for not completing the contract in time, 40,000 Tuirp.—As to the item for the nutlocks, the Referee made the following findings: ‘*9. That during the progress of the work the defendant purchased and furnished to the plaintiff and charged him for patented nutlocks, for which the defendant paid $9,558.63. ‘10. That the said nutlocks so furnished by the defendant were used by the plaintiff in the con- struction of the road. ‘© 11. That there are no provisions in the contract which require that the plaintiff and the plaintiff never agreed that he should use in the construction Tl of the road under said contract any patented nut- locks. “12. That the plaintiff was ordered by the de- fendant to put such nutlocks on the road at the beginning of the work. ‘13. That he protested against their use, and finally yielded, and used them in track laying up- on the promise that the matter of the charge for nutlocks should be adjusted after the completion of the contract.” See Referee’s Findings, Record, pages 112-113. Upon the facts so found the Referee found as conclusions of law: “3. That the plaintiff is not liable to the defend- ant for the sum of $9,558.63, the cost of patented nutlocks furnished by the plaintiff to the defend. ant and used by him in the performance of the said contract. 4. That there was no obligation imposed by the contract upon the plaintiff to furnish and pay for patented nutlocks to be used in the construction of said road. 5. That the plaintiff is not legally indebted to the defendant in any sum whatever for patented nutlocks furnished by the defendant and used in the construction of the road under said contract.” See Referee’s Findings of Law, Record, page 118. FourtH.—As to the right of the defendant to de- duct the $410,000 penalty the Referee found the fol. lowing facts. : 2. “That immediately after the execution of the said contract the plaintiff procteded to carry out 12 and perform the same, and did carry out and perform the same, except.a portion thereof other: wise agreed between the parties, and substan- tially completed the same on or before the 1st day of November, 1887, and the same was duly ac- cepted by the defendant on or about the ist day of March, 1888.” 5. ‘‘That the consideration for the performance of said contract originally mentioned in said contract was $3,914,600, but before the execution of said contract by the plaintiff, by and with the consent of the defendant, the consideration was changed and made “om 600.” 6. “That the plaintiff made and entered into a sup- plemental contract whereby he agreed with the de- fendant to complete his performance of said con- tract on or before the Ist day of June, 1887, and to allow the said defendant by way of forfeiture, in case the said railway were not so completed by the ist of June, 1887, the sum of $40,000.” 7. That the defendant failed to furnish the plaintiff with rights of way, as by said contract it had agreed to do in time to enable the plaintiff to complete his contract prior to the Ist day of June, 1887, or prior to the Ist day of August, 1887, but, on the contrary, delayed the plaintiff in the performance of said contract, at a point upon the said road known as Minneville, until October 27th, 1887, by reason of the neglect, failure and omission of the defendant to obtain the necessary right of way at said point so as to permit the construction of the road and completion of the contract at said point.” 13 8, “That the plaintiff was thereby prevented from completing his contract on or prior to August 1st, 1887, and also on or prior to June Ist, 1887, by the negligence, omission and fault of the defendant.” See Record, Findings, pages | 11-112. Upon the facts so found the learned Refereé held as conclusions of law: 1. ‘¢ That the defendant is not entitled to charge the plaintiff, or to retain and deduct from the amount earned and payable to the plaintiff under said con- tract the sum of $40,000 as a forfeiture or liqui- dated damages for not completing the contract on June Ist, 1887.” 2. ‘““That under the facts proved in this case, the plaintiff is not legally liable to the defendant for any damages for failure to complete the contract within the contract time of the time agreed upon, for the reason that the plaintiff was prevented by the negligence of the defendant, and its omission to procure the neces sary right of way, completing the work in such time.” : See Record, Findings, pages 117-118. Firra.—The only defense interposed by the pe. titioner to the payment of these just claims, which were a balance of the contract price earned by the respondent for ‘work actually done, was a receipt which the petitioner claimed amounted to an accord and satisfaction between the parties, and was a bar to the respondent’s recovery. That receipt is set out in full both in the petition for the writ and in the brief of the counsel for the A4 petitioner, as well as in the opinion of the Circuit ‘Court of Appeals, and need not be set out in extenso here. The following is a summary ‘statement of the transactions, as stated in it. Summary. Amount earned under contract fixed by engineer, $3,895,798.79 (not disputed. ) Amount allowed for extras fixed by en- gineer, ; 34,598.90 * Total, $3,930, 397.69 « Transporta- tion fixed bycontract $50,000. (notdisputed.) Amount re- tained as security for liens, etc., 40,000 a Payment in money, etc., $,617,306.50 3,707,306.57 ~ Balance, $223,091.12 Payment for nutlocks, $9,558.63 (amount not disputed.) Retained for forfeiture, 40,000. (amount not disputed fixed by contract.) $49,558.63 Balance, $173,532.49 (not disputed.) “Ls '' The transaction as shown by the receipt was in effect as follows: The petitioner conceded that the balance earned under the contract by » the respondent, after deducting all undisputed credits, amounted to $223,091 12 But there were two items as to which there was no dispute as to the amount, but which the petitioner de- ducted from the balance due the re- spondent, amounting to 49,558 63 Leaving the conceded balance due the respondent at all events, $173,532 49 In the payment of the balance of $173,532.49 the petitioner did not pay one penny more than it was. legally bound to pay, and which amount it is con- ceded was due to the respondent. But the petitioner claimed that the respondent, in consideration of the payment of the sum concededly due, agreed that he would relinquish and release all his claim to the items deducted for nutlocks and overtime, amount- ing to $49,558.63. In the Court below the respondent invoked the. principles of law above mentioned, and claimed that the receipt did not amount to an accord and satisfac- tion, and was no bar to the respondent’s recovery. Ist. Because, as to all the items paid, they were. wholly liquidated and undisputed in amount. 2d. Because the payment of those liquidated un- disputed items formed no consideration for the re- lease of the balance of the claim. 3d. That the rule that payment by a debtor of a part of his debt is not a satisfaction of the whole applied, and that an agreement to release under such circumstances was nudum pactum and unen- forcible. 16 SrxtH.—-The court below held that the facts found by the Referee brought this case directly within the principles above enunciated; and refer- ence need only be made to the opinons of the learned Judges of the Court below to show the reasoning upon which they held those rules apppli- cable to this case. Judge Lacombe, in his opinion, reasoned as fol- lows: ‘‘ It appears, as has already been shown, that at the time the ge in full or proposed ‘‘ accord ” was prepared and submitted to plaintiff for his ac- ceptance, the amount earned under the contract ($3,895,798.79) was a claim against the defendant ‘liquidated ” in the strictest meaning of the term. Not only was it undisputed in the sense that de- fendants were willing to Pay it but it was no longer open to dispute, even if they wished to dispute it. As to the work called for by the contract, that in- strument bound the defendant to pay the sums shown by the final estimate to be due whenever the Chief Engineer should certify to proper completion, and he had so certified. The price for such work was fixed by the con- tract itself. As to the extra work, the Chief En- gineer had certified that he had ordered it—that it was done and had fixed and determined the price for it—and the contract bound the company to pay — the price so fixed. Therefore, except for the —_ defense of payment, the company was wholly without defense to the claim for that sum, $3.. - 895,798.79; it could not contest it in court ‘‘ with good faith ” nor with ‘“‘any color of right.” Had laintiff before March 9th, 1888, brought suit for the fatanos of such sum remaining unpaid, after cred. iting the defendant with all the items of payment it asserted it was entitled to charge, the railroad company could not, assuming that its officers were * conscientious, even have verified an answer which could have raised any issue or delayed plaintiff’s entry of judgment beyond the time necessary to notice a motion for. judgment upon the answer as frivolous. As to the items of payment, which the company insisted upon, all. were and always have been conceded by plaintiff, except the cost of nut locks and the overtime penalty. When, therefore, both these items were credited to the defendant in 17 the receipt, it parted with nothing—not even a right to litigate—in agreeing to pay and in ac- tually paying the balance remaining of the liqui- dated amount earned under the contract after de- ducting all alleged credits for payment. Hence there was no consideration moving to the plaintiff by reason of the payment of this sum on March Yth, 1888, and unless some other benefit to plaintiff can be found to support it, his agreement implied by receipt in full, to abandon all claim to the cost of nutlocks and overtime charged, was without cuon- sideration and nudum pactum. - reference to the receipt in full, which is set forth in the 13th Finding of Fact, it will be found that the instrument disposed of another item not hereinbefore referred to in these terms; ‘‘ And whereas the further sum of $34,598.90 should be credited to said Clark for materials sold by him to said company, and certain rebates and other mat ters of that description, etc. etc.” This sum is, .by the statement of account set forth in such receipt, credited to Clark, and is included in the $173,532.49, paid to him upon his signing such receipt. From what has been said before, it is plain that if at the time of the transactions relied upon, as showing ac- cord and satisfaction, this sum of $34,598.90, so allowed to Clark, represented an unliquidated item, the amount of which he would have to establish by evidence in case he had sued to recover it, its allowance to him upon the settlement of March 9th, 1858, would be a sufficient consideration to uphold that settlement against him as an accord and satis- faction of all his claims. ; The findings of fact do not give much informa- tion as to the details of this item. It is suggested that the testimony in the case shows that it covered surplus materials, such as rails, spikes, bolts, etc., which Clark had brought on the line of the work. but had not needed; that it being more advantageous to sell them where they lay than to transport them elsewhere, plaintiff hail agreed with defendant that it would take them off his hands, had made ‘a trade outside of the con. tract.” But with the testimony this Court has nothing to do. It sufficiently appears from the findings that part at least of this sum was for ‘‘materials sold by (Clark) to said Company.” From the engineer’s certificate, which is included in 18 the ‘findings, it appears that this item represented no part of the work specified under the contract, and no part of the extra work and materials or- dered by him; that it was not included in his cer- tificate, nor in the final estimate; that he made no decision about it one way or the other, and appar. ently that he never undertook to pass upon it. Therefore, it was not liquidated by the original contract, nor by any action of the engineer there- under. Indeed, it is plain to a demonstration from the findings, that the item in question was not in- cluded either in the original contract or in the extra work, and must represent an additional and inde- pendent contract of sale. What the terms of that contract of sale were the findings do not disclose; if they were of such a character as to leave the price, of the Article sold open to future adjustment, and if no’binding agreement of the parties had subsequently naiuated such price; in other words, if on March 9th, 1888, the situation was such that the plaintiff put to his suit could have recovered this item only by proof of amount furnished or of reasonable value, or of both, then it was an unliquidated item; and its allowance to the plaintiff on settlement would be a good considera- tion to support the contract of accord and satisfac- tion. If, on the contrary, before that time, either when the independent contract was made or later, the parties had settled on the quantities delivered and had agreed upon the price, nut by some mere expression of willingness to pay a particular amount, but in such a way as to preclude further litigation ‘“‘in good faith” or “‘ with any color of right”—then the allowance and payment of the $34,598.90 would not constitute good consideration. The only light we have upon this question is found in a single clause—indeed, practically in a single word—of the 14th finding of fact: ** That said receipt and paper contained an accurate, truth- ful and undisputed account of all dealings between said parties except in the matter of the forfeiture,” etc. It is quite manifest from the findings and con- clisions that the Referee uses this word ‘ undis- puted” as synonymous with liquidated. He was evidently satisfied from the testimony that the prior transactions between the parties were such that this sum was not more open to dispute than was 19 the sum of $3,895,798.79 to which the Chief En- gineer had certified. By what process it was so liquidated does not appear in the findings, and no one seems to have asked the Referee to find the facts more specifically. We must take his find- ing, therefore, as conclusive upon the question, and assume that, either by agreeing for a price in advance or subsequently by entering into some binding agreement as to the.sum to be paid, the defendant had lost its right to throw the plaintiff into court as to that item. Its allowance and pay- ment, therefore, could not constitute a good con- sideration for the alleged accord and satisfaction. Judge Wallace, in his opinion, said: ‘*The Referee found. as conclusions of law: (1) That at the time of signing the receipt the plaintiff was not indebted to the defendant upon the item for nutlocks; (2) that the plaintiff was not liable for the item of $40,000 debited to him for failure to complete the railroad by June Ist, 1887; (3) that when it rendered the statement of account the defendant was indebted to the plaintiff in the sum of $49,553.63, in addition to the sum of $173.532.49 paid by it upon receiving the receipt; (4) that the delivery of the receipt and the accept- ance of the payment by the plaintiff did not consti- tute a valid payment or accord and satisfac- tion of the said sume of $9,558.63 and $40,0v0, or either of them, or any part of them; and that the plaintiff was entitled to recover the sum of $49,558.63, with interest from March 9th, 1888. The assignments of error thus raised the question whether the acceptance of $173,537.49 by the plaintiff upon a promise to receive it in full of all his demands was a settlement and satisfaction of his demands against the defendant, which amounted to $49,558.63 more than that sum. If there was no consideration fur his promise, the conélusion of the Referee was correct. If there - was a sufficient consideration for it, the assign- ments of error are good. * * * It is conceded that, as to the part of the plaintiff’s demand established by the certificate of the engineer, it was a liqui- dated and undisputed demand against the detend- ant in the sense in which these terms are used in considering the validity of a promise to accept a part payment in satisfaction of the whole demand. = 20 The other part of the plaintiff's demand that for the materials, etc., purchased of plaintiff by de- fendant was, according to the Referee’s finding, undisputed in fact between the parties, and this being so, it is quite unnecessary to inquire whether it was originally one in respect to which there might have been a fair difference of opinion be- tween the parties as to the amount due. The statement of account rendered by the de- fendant is evidence as against the defendant not only that it was an undisputed demand, but one the amount of which had been ascer tained by the parties. If the amount had been ascertained, it was a liquidated demand. As no facts appear in the findings of the Referee to the contrary, it is to be concluded that this part of the plaintiff's demand was also liquidated as well as un- disputed by the defendant. The case is not precisely one where the debtor refuses to pay the whole of an undisputed and liquidated demand, and exacts a promise from his creditor to receive part in satis- faction of the whole. Strictly it is one where the creditor having two undisputed and liquidated de- mands against the debtor, and the latter claiming to have cross demands or counterclaims against the creditor, refuses to pay the creditor’s demands un- less the validity of the cross demands is acknow]l- edged and their amount allowed to him by the creditor. By the statement of account and the re- ceipt annexed to it the defendant, in fact, took this position and notified the plaintiff that as a condition to paying the demands which it conceded to be due the plaintiff, the latter must allow and deduct the debited items for the nutlocks and the forfeiture. Upon this state of facts a promise to allow the whole amount of the cross demands has no con- sideration to sustain it, because, in contemplation of the law, no benefit could accrue to the promisor and no injury to the promisee. The promisor derives no benefit, because he allows the whole; the promisee is not injured, because he , relinquishes nothing.” It will thus be seen that both the Judges are en- tirely in accord as to the law applicable to the case, which, reduced to a concrete form, is simply that an agreement without consideration is nudum pactum and unenforcible. 21 It will also be seen that both of the Judges con- cur in the view that, as a matter of fact, there was no consideration for the release or discharge of his claims by the respondent. SixtH.—Upon the receipt, as an accord and bar to the responadent’s recovery, the petitioner rested practically its entire defense. When asked whether it was just and right that the respondent should be mulcted in the sum of $40,000 for not completing the road in time, when the conceded testimony showed and the Referee found that the fault was that of the petitioner in not obtaining rights of way, its only reply was, the respondent has lost his right to payment by reason of the receipt. When asked whether it was just and reasonable, and whether there was any provision of the con- tract warranting it in taking from the respondent $9,558.23 for nutlocks, its only answer was, the receipt prevents the payment. It was read, reread and read again at every stage of the trial, and it was claimed constantly by the petitioner that, no matter how just were the claims of the respondent, the receipt was a bar to them all. It is claimed that the receipt stands as payment, though no payment has been made. That it stands for an account stated, though no account had been rendered and no statement made; that it stands for an accord and satisfaction without the slightest proof of either the accord or satisfaction. The defense, it is submitted, is not a just one, and the Court below properly found that it also was not a legal one. It is believed that this Court will have no diffi- culty in arriving at the conclusion that the rules of law were properly applied by the Court of Appeals to the facts found in this case. © 22. Point IV. None of the cases cited and relied upon by the petitioner conflicts with the decision in the case at bar. The decisions of this Court in the cases of U. 8S. v. Child, 12 Wall., 232, and U.S. v. Adams, 7 Wall., 463, as well as the other cases in this Court, relied upon by the petitioner, were distinguished and held not applicable to the facts in this case, in the opinion of Judge Lacombe, as follows: ‘* Analy- eis of the leading reported cases will show that although it is not always discussed in the opinion, a valuable consideration is found to be present wherever a defense of accord and satisfaction has been sustained. The brief filed by the learned counsel for plaintiff in error presents such a com- prehensive selection of authorities that it will be sufficient to refer to its citations. , First to be considered is a group of decisions of the U. S. Supreme Court, where claimants for sup- plies furnished to the Government were held fore closed by wi ye in full and acceptance of part of their original claims. It should be remembered that the U. S. Treasury pays only out of appropriations and upon audit. There being many claims for mili- tary stores furnished during the Civil War, Con- gress created a special board to pass upon their va- lidity and amount. None was required to bring his claim before such board, but if he did, payment was at once secured to him of whatever amount the board might find due, out of a special appropriation made for that purpose. Payment on all of these claims out of the ordinary appropriations had been suspended by order of the Treasury Departinent. ‘* From the time the Secretary issued his order sus- pending the payment, * * * they must be re- garded as claims disputed (7. e.. the whole claim) by the Government; and unless the board had been constituted, could have been adjusted only by Con- gress or the Court of Claims” (7 Wall., 463). In all these cases the amounts paid in settlement were unliquidated, since but for the finding of the board, the Government could have litigated them all in good 28 faith, andin giving mareneer? ye the ei at the weed time going to the expense of constituting a specia tribunal to adjust the. claims, and ——s the more expeditious payment of what might be found. due, there was certainly abundant consideration to sustain the settlement. U.S. v. Adams (1868), 7 Wall., 468; U. S. v. Child (1870), 12 Wall., 232; U. S. v. Justice (1871), 14 Wall., 15. In Sweeny v. U. 8. (1872), 17 Wall., 77, the claim wasclearly un- liquidated as to every part of it, involving the ques. tion of reasonable compensation; a circumstance which appears from the opinion: ‘“‘ Enough appears to satisfy the Court that the charter party was. superseded and that the claim, in fact, was for a quantum meruit, and as such that it was a proper subject of compromise.” In U.S. v. Martin (1876), 94 U. S., 400, plaintiff, a laborer, claimed extra pay under some construction of the eight-hour law. He presented his claim to the auditor in 1873 and re- ceived $205, giving a receipt in full. He subse- quently brought suit for the balance in the Court of Claims. The payment of the $205 was a suffi- cient consideration, since the entire claim was fairly disputable in the courts. In Baird v. U S. (1877), 96 U. S., 480, plaintiff had a contract with the Government to furnish certain locomotives. The stipulated price was, first, a fixed sum for each locomotive; second, any advance there might be, af- ter acertain date. in cost of labor and materials; and third, any damages resulting from giving the Gov- ernment’s order preference over others. The fixed price had been claimed and the damages recovered hy suit. The plaintiff presented a claim for $151,588 for entire advance in cost which was audited and allowed for $97,507, and plaintiff informed of the principles upon which the adjustment was made. He took draft for the amount and collected it. Held an accord and satisfaction. Manifestly every dol- lar of the claim of $151,588 was unliquidated and susceptible of liquidation only by consent of the Government or by. the courts. As