
    Hunsicker v. Williston.
    An agreement not to place a case on the trial list 'without the consent of both parties, is binding upon the parties, and will be enforced by the courts, where the case had been at issue for many years, and repeatedly upon the trial list.
    The finding of the court belotv that there was such an agreement, will be accepted by the supreme court, although there was a conflict of evidence.
    March 21, 1889.
    Error, No. 365, Jan. T. 1889, to C. P. Bradford Co., to review the action of the court in making absolute a rule to strike off a case from the trial list, being an action of debt by Cornelius Hunsicker against J. S. Williston, at Dec. T: 1861, No. 657. Williams and McCollum, JJ., absent.
    From the record, it appeared that the action was begun in 1861.. On Sept. 1, 1862, the defendant filed an affidavit of defense. The case was continued from term to term until Feb. 12,1872, when the court ordered the case off the trial list. On Dec. 12, 1874, it was-again placed on the trial list and remained thereon until April 2, 1877. It was then removed from the trial list by agreement of the parties. On Dec. 19, 1887. the case was again placed on the trial list, by order of court. On Feb. 6, 1888, the court granted a rule to show cause why the within stated case should not be stricken from the trial list. In the petition for this rule, it was averred by defendant that the agreement of April 2, 1877, was that the case should not again be put on the trial list without the consent of the-parties. The petition further averred that since said agreement was made, important witnesses on part of defendant have died, others gone from the country and out of the deponent’s knowledge,, and others become incompetent to testify; that from the long time that has elapsed it would be impossible for deponent to produce the necessary papei’S, accounts and vouchers to safely try the case; that deponent, supposing the case was abandoned, had taken no care to-preserve the evidence in the case. There was some conflict of evidence in regard to this agreement. This rule was made absolute and the case stricken from the list. On Dec. 28, 1888, the court granted a rule on defendant to show cause why the case should not be put upon the trial list. On Jan. 9, 1889, this rule was discharged by the court, Sittser, P. J., of the 44th judicial district, specially presiding.
    Depositions were taken, which were presented on the hearing of the above rule. The testimony was to the following effect:
    The prothonotary testified that the papers of the case were missing; that the last person known to have had them was Mr. Hunsicker, who, he thought, had brought thern back. The deputy prothonotary testified that Mr. Hunsicker had gotten the files of the case in the fall of 1887, receipted for them, returned them the same day, and had not gotten them again, to his knowledge.
    Elhanan Smith, Esq., who had been counsel for Hunsicker, in this case, testified that he had presented to the court the agreement of the parties taking the case off the list, and had left it with the prothonotary. The agreement was signed by Mr. Hunsicker and Mr. Williston. The substance of it, if not the words, was : “ This case is continued and off the list, not to be put on the list again without consent of parties.” Mr. Smith further testified that he had seen the paper between Sept, and Dec. Terms 1887; Mr. Hun-sicker took him the papers of the case; the agreement was there and Mr. Smith said: “ That is the foolish paper that you signed and I told you so then.” Mr. Hunsicker then explained that that was not binding, and that he and Williston understood it. Soon after this, Dec. 19, 1887, Mr. Smith made the motion to have the case put on the list.
    Mr. Hunsicker testified that there was some agreement in the files in Mr. Williston’s handwriting; and he believed it was drawn at Athens; the case was on the trial list at the time the paper was drawn; he had not seen the paper since it was in Mr. Smith’s office; he didn’t remember that he had hold of the paper that day. The case was not on the trial list from that time until recently.
    Mr. Hunsicker further testified: “ The proposition was made to try to adjust the matter out of court. The claim was in controversy there. Mr. Williston made the proposition to try to adjust the matter out of court. The proposition had been talked between Mr. Williston and myself before. That proposition was accepted of by me and the case put off the list with that in view. . . . Mr. Williston said to me once or more times that he didn’t want this matter continually coming on the trial list; that it was piling up costs unnecessarily, and if I would consent to lay it off the issue list that we would try and fix it up outside of court; that was not done, and it was put on the issue list again.”
    Mr. Williston testified, inter alia: “My recollection of the case is that, some time before we dropped it in 1877, the case was on the trial list, and I would say that I had more than one talk with Mr. Hunsicker about it, and that finally I told Mr. Hunsicker tha he must try the suit or drop it, or to that effect, and that he was not ready to try it, and that we agreed to drop it, and drew up an agreement to that effect, and that the thing then dropped out of my mind.”
    On Jan. 25, 1889, the plaintiff presented a petition for a reargument wherein it was stated that, since Jan. 9, 1889, the files and papers in the case had been found in the prothonotary’s office and the only papers relating to the continuance of the suit was one, signed by both parties, dated at Athens Dec. 11, 1875, which read as follows: “ It is hereby agreed by the parties that the above suit goes over to February Term and longer if the defendant is not then ready.”
    The petition continued: “From the evidence taken in the above case, it is almost certain that the above agreement is the agreement referred to in the defendant’s petition, and in the evidence taken wherein the contents of the written agreement was undertaken to be given, and that no such written agreement was ever made and filed with contents, as sworn to by the defendant, both in his petition and his evidence taken on said rule, as well also as the other witnesses.”
    The motion for a realignment was refused by the court.
    
      The assignments of error specified, 1, the action of the court in granting the rule of Feb. 6, 1888, quoting it; 2, in making the said rule absolute, quoting it; and, 3, in discharging the rule of Dec. 22, 1888, quoting it, and refusing to restore the case to the trial list.
    
      H. N. Williams, with him N. C. Elsbree and R. H. Williams, for plaintiff in error.
    The effect of refusing to place the case upon the list is the same as an absolute and unconditional release of plaintiff’s cause of action. It is a final adjudication of the case. This contract has, by the action of the court, been extended to subjects and matters not contemplated or intended by the parties at its inception. It cannot be supposed that the plaintiff intended to release his claim by this agreement. A contract must be construed according to the intent of the parties. Case v. Cushman, 3 W. & S. 546; Cullen v. Hiltz, 14 Pa. 288; McMahon v. Davis, 19 Pa. 536; Allison’s Ap., 77 Pa. 226; Bickford v. Cooper, 41 Pa. 142; Oliver v. Oliver, 4 Rawle, 140; Renshaw v. Gans, 7 Pa. 117.
    The enforcement of this agreement is in violation of article i, § 6, of the constitution, inasmuch as it deprives the plaintiff of his right to a trial by jury. North Penna. Coal Co. v. Snowden, 42 Pa. 492; Tillness v. Marsh, 67 Pa. 507; Hain’s Ap., 73 Pa. 169.
    The agreement was nudum factum. Rice v. Morris, 4 Wh. 248; Slibert v. Grew, 6 Wh. 403. A written release of a claim or cause of action not under seal requires a consideration to support it. Whitehall v. Weston, 3 P. & W. 405; Acta v. Acta, 6 Pa. 228; Redder v. Redder, 33 Pa. 268.
    Equity will not enforce such a contract. Campbell v. Spencer, 2 Bin. 129; Patterson v. Martz, 8 Watts, 397; Miles v. Slevins, 3 Pa. 37; Bodine v. Gladding, 21 Pa. 53; Meason v. Kaine. 63 Pa. 346; Hackney v. Weilney, 50 Pa. 244; Bleakley’s Ap., 66 Pa. 191; 72 Pa. 354; 80 Pa. 495; 53 Pa. 249; 57 Pa. 72:
    
      H. F. Maynard, with him H. A. Lamberson, for defendant in error.
    The parties agreed to take the case out of court. Thus a new contract was created, for the breach of which an action would lie on the new contract. McNish v. Reynolds, 95 Pa. 183.
    Hunsicker, from his long delay, is now estopped from a trial of the case. McCarten v. Waphagen, 10 Cent. R. 193.
    March 25, 1889.
   Per Curiam,

This case was not killed by the court below, as was suggested by the learned counsel for the plaintiff in error. It died of old age, of pure inanition. The suit was brought in 1861, had been on the trial list over and over again, and as often taken off. At last it was taken off under an agreement that it should not be restored without the consent of both parties. Under such circumstances, it was not error in the court below to refuse to make a rule absolute to place it again on the trial list, tbe defendant resisting the rule. It is true there was some conflict of evidence in regard to this agreement. The learned judge below has, however, distinctly found the fact of such agreement, and we must accept his finding. Nor can we express any regret that a suit of such venerable character has dropped into the grave.

The order is affirmed.  