
    JACOB W. FEETER, Plaintiff and Respondent, v. MARGARET WEBER, Executor, &c., Defendant and Appellant.
    I. Contracts.
    1. Promissory note.
    
    
      (a) Consideration, what sufficient.
    The settlement of a litigation is a sufficient consideration for notes given in pursuance of, and to effect, the settlement.
    H Settlement.
    
    1. Estoppel by.
    When parties to a litigation come to a settlement thereof, and one, pursuant to the settlement, and to carry it into effect, gives to the other bis promissory notes (such other complying with the terms of settlement on his part), he cannot, in an action on the notes, set up that Ms adversary in the litigation so settled had no legal cause of action against Mm, without showing fraudulent concealment of material facts which were not within his knowledge when he gave the notes.
    
      (a) Especially is this the case where the defendant in an action on the notes himself proves the settlement and compromise.
    Before Speir and Freedman, JJ.
    
      Decided November 4, 1878.
    
      The defendant appeals from a judgment in favor of the plaintiff on a verdict rendered by the jury, under the direction of the court, for $3,416.94, entered December 13, 1877, being the amount of four promissory notes, with interest, dated September 3, 1874, for $500 each.
    It appeared that Mrs. Mary A. L. Weber, the widow and executrix of Albert Weber, had in the lifetime of Charles F. Weber commenced an action against him for the recovery of certain goods, chattels, and credits, claimed to belong to the estate of Albert Weber, and had also taken certain proceedings before the surrogate. The suit and proceeding were settled between the parties. The terms were that Charles F. Weber should give to Mary A. L. Weber 'the promissory notes in question, and Mary A. L. Weber should assign all claim to the estate of Albert Weber, deceased, her husband, to Margaret Weber, wife of Charles F. Weber, and discontinue the above mentioned suits, and stipulate that she would bring no other for the same cause of action or any part thereof, or for any goods, chattels, money, or credit claimed to have been taken by the defendant therein, and that she should surrender to Charles F. Weber, all the books, papers, receipts, vouchers, or memoranda in her possession belonging, or at any time in the possession of Albert Weber, deceased, or that came into her possession as executrix, or that have been in her possession at any time since the decease of Albert Weber.
    Each party fulfilled the terms to be performed by them respectively.
    Thereafter Charles F. Weber died, and letters testamentary were issued to defendant as executrix of his will.
    The notes were assigned to the plaintiff.
    Defendant’s counsel admitted all the material aliegations in the complaint, but insisted that there was no consideration for the notes, because the estate of Charles F. Weber had no cause of action whereon to found the action and proceedings compromised, and that Mary A. L. Weber was chargeable with knowledge of it.
    There was no re-assignment or offer to re-assign that which had been assigned to Margaret, nor any offer to annul the stipulation for the discontinuance of the aforesaid action, nor any return, or offer to return the articles, &c., which had been surrendered to Charles F. Weber.
    The defendant held the affirmative of the issues on the trial.
    
      Sigismund Kaufmann, attorney, and Lewis Sanders, of counsel, for appellant, among other points urged :
    I. To justify the direction of verdict in favor of either party the evidence must hot only be undisputed, but there must be no evidence in the case which would warrant a jury in drawing contrary inferences. If there are any inferences to be drawn, the case must be left to the jury. “The evidence tended to maintain the issue which the jury were to try; whether weak or strong, it was their right to pass upon it” (Hickman v. Jones, 9 Wall. 201; Barney v. Schmeider, Id.). “Nor is it always enough that the evidence be undisputed, if it be of a circumstantial character, for then there is often a conclusion to be drawn by the jury” (Rich v. Rich, 17 Wen.676). When a question of fraud arises on the trial, the court cannot withhold such question from the jury (Upton v. Bedlow, 42 How. 121). It was for them (the jury) to draw inferences from the conduct of the parties, and upon an examination of all the facts to declare what that conduct was designed to express (Lockwood v. Thorn, 18 N. Y. 291).
    
      II. The answer denies that there was any consideration whatsoever paid for the notes. The notes were given in compromise of a suit in the superior court and surrogate’s proceedings ; the court declined to try the question whether or not these claims were tona fide or not, and excluded nearly all the evidence offered to show the claims to be totally unfounded. Upon all the authorities this was clearly error. If the estate of Albert Weber had no claim against his father, Charles F. Weber, then a bringing of a suit did not make it any better; it made it worse, being in the nature of a blackmail claim, and its discontinuance would not be any consideration ; as plaintiff, by discontinuing a suit without any foundation, got rid of the certainty of paying costs. This point was directly raised and decided by Tiítdal, C. J., and Cress well, J., in Wade v. Simeon (3 D. & L. 596), where the declaration stated that the sums sued for had been promised by defendant during the pendency of a former suit, and in consideration of its being discontinued, which was done. The defense was that the plaintiff never had any cause of action, and that he knew it. To which defense plaintiff demurred. The demurrer was sustained (See also Cook v. Wright, 1 B. & S. 539, 570 ; Tooley v. Windham, Cro. Eliz. 206). Longridge v. Danville (5 Barn. & Ald. 122), suit on compromise of claim for damages against the owners of the ship Carolina. “Bayley, J. If it had appeared in this case that the owners of the Carolina' could not have been liable at all, I agree that the consideration for the promise would have failed.”
    
      J'. W. Feeler, attorney, and of counsel, for respondent, urged:
    I. The notes in this action, having been given in settlement of former actions, are founded on good consideration, and the court will not look behind the compromise,—it is not competent to show that the first suit could not have been maintained (Bronson, J., Stewart v. Ahrenfeldt, 4 Denio, 189; Farmers’ Bank of Amsterdam v. Blair, 44 Barb. 641; Russell v. Cook, 3 Hill, 504 ; Seaman v. Seaman, 12 Wend. 381).
    II. The notes in suit given by defendant’s testator to Mary A. L. Weber, and the consent given by Mary to discontinue the actions brought by her against said Charles F. Weber, and the assignment by Mary to defendant of her interest in the estate of Albert, and the general release to Charles F. Weber, each was the consideration for the other, and constitute a written agreement. The defendant is estopped from avoiding said agreement, or the payment of said notes, without having restored or having offered to restore to plaintiff’s assignor or plaintiff whatever the defendant or her testator received for said notes (Ely v. Kilburn, 5 Den. 514; 2 Abb. Dig. 270, § 1395 ; Mumford v. Am. Life Ins. Co., 4 N. Y. 482, 483; Hogan v. Weyer, 5 Hill, 389 ; 5 Barb. 319 ; 13 Id. 641; 2 Story Eq. §§ 693, 694 ; Willard's Equity (Potter’s ed.) 303).
   By the Court.—Speir, J.

The main defense interposed on the trial was that the notes were given and executed without any consideration. It appears that a suit was pending in this court, brought by Mary A. L. Weber, executrix of Albert Weber, deceased, against Charles F. Weber, the maker of the, notes, for the recovery of certain goods, chattels and money supposed to belong to the estate of Albert Weber, deceased. That at the same time, certain proceedings were pending in the surrogate’s court in the matter of the estate of Albert Weber, deceased, in which she as executrix and legatee claimed as owner all the estate and assets belonging to him in his lifetime. These proceedings in the surrogate’s court and the suit in the superior court were compromised and discontinued on September 2, and the notes in suit are of the same date and were given in consideration of the settlement of the suit and the proceedings in the two courts. The defendant’s counsel furnished the. evidence on the trial of the discontinuance and settlement in both cases; He then offered to show that Mary A. L, Weber, executrix, &c., had no legal cause of action against Charles F. Weber, the defendant in said suit or proceedings.. The learned judge, very properly, we think, declined to try that issue. The settlement and compromise rested upon a good consideration. The counsel did not offer proof of any fraudulent concealment of material facts,, which were not within the knowledge of his client, who made the notes ; he was not therefore in a position to defeat a recovery-upon his promise to pay them. The defendant having himself furnished the evidence of settlement and compromise was estopped from setting up that the proceedings in the courts had no foundation in law.

The claim that Charles F. Weber was under duress at the time he executed the notes and delivered them to Mary A. L. Weber, was clearly shown to be destitute of any foundation by defendant’s own- witness. Further notice of the point is unnecessary.

The judgment must be affirmed with costs.

Freedman, J., concurred.  