
    Russell vs. Cook and another.
    A note given upon the settlement of a doubtful claim preferred against the maker, will be upheld as founded upon a sufficient consideration, without regard to the legal validity of the claim.
    In such cases it matters not on which side the right ultimately turns out to be; the court will not look beyond the compromise. Per Cowen, J.
    Error to the Onondaga common pleas. Russell recovered judgment before a justice against Cook and Smith on a promissory note made by them, payable to Sanford B. Palmer or bearer, for |68,34, with interest, and bearing date April 4th, 1836. The note fell due in July, 1837, and was transferred to the plaintiff after that time. The defendants insisted that the note was without consideration; and, after judgment before the justice, they appealed to the common pleas. On the trial in the latter court the following facts appeared : The note was given on the compromise of a claim made upon the defendants by said Palmer and one Noble, for damages done to a cargo of barley, in which Palmer & Noble claimed an interest. The barley was damaged in the fall of 1835, while in the course of transportation in the defendants’ canal boat from the store of Palmer & Noble, Manlius, Onondaga county, to one Taylor, who resided at Albany. Palmer & Noble purchased the barley for Taylor with funds furnished by him ; he to allow them a commission of twelve and a half cents per bushel for buying and delivering at Albany, and they assuming the risk of transportation. Palmer & Noble contracted with and paid the defendants for the transportation. The defendants owned the boat in which the barley was transported ; and the evidence showed them to be common carriers. The damage to the barley occurred in passing another boat at a place where a stone happened to be in the canal of such a size that the boat struck it. There was a slight collision with the other boat, and the defendants’ boat was so broken or strained, by striking its bottom against the stone, as to let in the water and sink it in a short time. Testimony was given on the question, whether the defendants had been negligent in the matter ; whether the accident was in any degree caused by meeting the other boat, and whether proper efforts were made to prevent the boat sinking after the accident happened, &c. It was shown that the place was peculiarly liable to obstructions from stones rolling into the canal; and that while there, the boatmen having no knowledge of the fact, as was the case in this instance, such accidents could not well be avoided. It appeared from the evidence given by the defendants that, after considerable negotiation with a view to a settlement between them and Palmer & Noble, they finally agreed to divide the loss; that thereupon a true statement of the entire amount was made out, and the defendants gave their notes for one half of it; that the note in question was among the notes thus given.
    The court below were in effect requested to charge, among other things, that the facts proved did not show the note to be without consideration, and that the plaintiff was therefore entitled to recover. The court refused so to charge ; whereupon the plaintiff excepted. After verdict and judgment for the defendants, the plaintiff sued out a writ of error.
    
      H. C. Van Schaack, for the plaintiff in error.
    
      H. J. Sedgwick, for the defendants in error.
   By the Court, Cowen, J.

The defendants below admitted the execution of the note ; and the burthen of showing that it was without consideration lay on them. They accordingly proved that several years before suit brought, they undertook with Palmer & Noble to transport from Manlius to Albany certain barley in which they (Palmer & Noble) had a special property, and which they were bound to see delivered at Albany to Taylor. The defendants were common carriers by their boat on the canal, which, owing to its accidentally striking a stone in the canal, of which the defendants could not he perfectly aware,was broken, sunk and the water letin upon the barley, by which it was much injured. A dispute arose between the parties whether the defendants were liable, and this was compromised by Palmer & Noble agreeing to discount one half of their claim, and the defendants agreeing to pay the other. The half which fell upon the defendants was secured by several promissory notes, of which the note in question was one. The estimate of damage was deliberately and fairly made. Palmer & Noble were guilty of no fraud; the defendants were fully aware of all the facts; and there was no mistake in the case. This is the defence, as made out by the defendants’ own testimony. The court below ¡submitted to the jury whether the notes were made without consideration, and the jury found for the defendants.

I am of opinion the court below erred in omitting to charge the jury that the plaintiff was entitled to recover. No one would think of denying, that at least the dispute between the parties wms doubtful, and that probably the law was against the defendants on the facts disclosed by their evidence. It is enough, however, that it was doubtful, and that the notes were given in pursuance of an agreement to compromise, in no way impeached for want of fairness. To show that this is so, I shall do little more than refer to Chit, on Cont. 43, 44, ed. of 1842, and the notes, where cases are cited which refuse to open an agreement of this kind, under circumstances much stronger in favor of the defendant than exist here on the most liberal construction which the defence can pretend to claim. The case of O’Keson v. Barclay, (2 Pennsyl. R. 531,) sustained a promissory note given on the settlement of a slander suit for words not actionable. In such cases it matters not on which side the right ultimately turns out to be. The court will not look behind the compromise. (Taylor v. Patrick, 1 Bibb, 163 ; Fisher v. May’s heirs, 2 id. 448.) It is not necessary, however, in the present case, to go farther than was done in Longridge v. Dorville, (5 Barn. & Ald. 117.) There the ship Carolina Matilda had run foul of the ship Zenobia in the Thames, and the former was arrested and detained by process from the admiralty to secure the payment of the damage. The agents for the owners of the Carolina Matilda stipulated with the agents for the owner of the Zenobia that, on the latter relinquishing their claim on the Carolina Matilda, the damages should be paid on due proof of them, if they did not exceed ¿£180. The proceedings in the admiralty being withdrawn, an action was brought on the promise. The Carolina Matilda had a regular Trinity-house pilot on board when the collision took place i and there was some doubt on the law, therefore, whether the owners were liable. Held, that the compromise being of a claim thus doubtful, the defendants were absolutely bound, without regard to the question of aetutal liability. Abbott, Ch. J. said, the parties agree to put an end to all doubts on the law and the fact, on the defendants’ engaging to pay a stipulated sum.” The parties agreed to waive all questions of law and fact.” Indeed, such is the intent of every compromise ; and the best interests of society require that such should be the effect.

I therefore prefer putting the case on that ground, though I feel very little doubt that the defendants were liable to Palmer & Noble for the whole damages, instead of the half for which they were let off.

Judgment reversed.  