DYER V. MUHLENBERG COUNTY, KY., et al., 117 F. 586

SEVERENS, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. The main question in this case depends upon the construction and effect of the compromise agreements between the parties made on March 20, 1900. It is strenuously contended by the plaintiff in error, and the point is emphasized in his brief in reply, that they are separate and distinct agreements, relating, the one, to the judgment recovered by himself on the old bonds, and the other, to the joint judgment of Dyer and Gillett on the new.

And he says: “The promise of the county embodied in agreement No. 1 was supported by a good consideration. The promise in agreement No. 2 had no valid consideration to. support it. The circumstances that the two agreements were made at the same time does not cure the defect.” By which last proposition .it is doubtless meant to say that the fact of their being contemporaneous does not necessarily import that they are dependent parts of one contract; and this, as a general statement of a rule of construction, may be admitted.

But, to say nothing of the circumstances that the stipulations of these two agreements relate to a general purpose of effecting a compromise, they are interrelated by their express terms, and it is stated that the one is the consideration of the other. There cannot be the slightest doubt that the two agreements should be read as one.

Although the other bondholders did not join in the particular agreement between the county and Dyer and Gillett, it sufficiently appears that it was a condition to the scheme of refunding or paying off the old bonds at 20 per cent, that all, or substantially all, the old bonds should be compromised, and that this was practically accomplished when the agreement here in question was made. Each of the numerous bondholders, therefore, had an interest in the assets which were to become available under the new effort of the county to disencumber itself.

The old bonds amounted to about one-fourth of the whole taxable value of property in the county, and it was manifest that, if the tax levies were to be consumed by paying off the old bonds at par and interest, there could be nothing left for those coming into the new scheme, The agreement here in question recites that “the said county and the holders of said bonds and judgments wish to compromise the same, and have mutually agreed on the terms of compromise; and whereas, the said Dyer and Gillett now own the following judgments on the said original bonds: Now, therefore, in consideration of the premises, and of the agreement of certain other owners of said bonds or judgments thereon to accept a like sum from said county in compromise of their respective debts, the said Dyer and Gillett have agreed, and do hereby agree, to accept in compromise,” etc.

The other creditors have a clear and strong equity to the fulfillment of the contract, and their agreement in reference to their own bonds was a sufficient consideration to support the agreement of Dyer and Gillett in the present instance. So far as the agreement relates to the payment of the judgment on the new bonds, it has been accomplished, and we have only to inquire, upon the point we are how considering, whether there was a sufficient consideration for the agreement in reference to the judgment on the old bonds. We think it clear that there was.

In a letter of the county commissioners to Dyer, mentioned in the preceding statement, this contract is called an “option,” and in the brief of the plaintiff in error it is claimed to be such. But chat is a misnomer. It was a complete mutual engagement, and bound both the parties to its stipulations. But it is contended that time was of the essence of the contract, and that by its failure to pay the amount stipulated on or before January i, 1901, the county forfeited its right thereunder, and that the other parties were remitted to their original right.

Whether, in the circumstances of this case, and especially having regard to the facts that time was not in terms made essential, and that the contract affected, and was affected by, the rights of the other creditors, it may be doubtful whether the court would be justified in applying the rule relied upon by the plaintiff in error. In the case cited— Clarke v. White, 12 Pet. 191, 9 B. Ed. 1046—the reason given for the rule is that, until the agreement is executed, it continues unilateral, and is not obligatory upon the creditor.

Says the court: “It is generally true, in cases of composition, that the debtor who agrees to pay a less sum in discharge of a contract must pay punctually; for until performance the creditor is not bound.” And undoubtedly this is so where the agreement is a mere privilege to the debtor, and is not one pervaded by the substantial elements of a mutual contract. But we need not pursue this subject in view of the conclusion we reach upon another point.

It is undoubted that a party who has the right to strict performance of a contract in respect “to the time thereof may waive it, and does so if he subsequently accepts the benefits of the contract. It is shown—indeed, is admitted—that subsequently to January 1st the petitioner received from the county two payments of $1,000 each upon the judgment rendered in favor of himself and Gillett out of moneys levied for. that express purpose, and that on May 16, T901, he received the balance of the judgment out of the proceeds of bonds sold for the purpose of enabling the county to pay this judgment.

We can have no doubt that he knew from what source those moneys came, and that they had been raised for the purpose of meeting the obligations of the county assumed by the contract he had with it; and the agents of the county held the funds he received charged with that definite purpose, which he knew they could not rightfully disregard. His suggestion is that he was entitled to be paid his judgment on the new bonds any way, and that his reception of the payment was no more than his right. But the county had the right to have these funds applied to the fulfillment of its contract of March 20, 1900.

His claim that he had repudiated the continuing obligation of the contract, and was, therefore, acting independently of it, cannot be sustained. If one’s acts and speech do not conform with each other, the things done must have their due legal consequence, notwithstanding all protestations to the contrary (Dodsworth v. Iron Works, 13 C. C.

A. 552, 66 Fed. 483), and Dyer’s intention must be held to be what his acts import. ' The petitioner further contends that “the acceptance of payment by Dyer and Gillett of their partnership judgment did not operate as any waiver by Dyer of his individual rights in respect to the present judgment”; but we think it did. The evidence tends to show that, although Dyer was the nominal plaintiff in the case, the judgment really belonged to Dyer and Gillett, and the contract itself, to which Dyer was a party, so states.

Again, it is urged that the accepting of payment of the new judgment was not effectual as a waiver, because it was not supported by a valuable consideration. What we have already said disposes of this contention. The county, although it owed the judgment, had the right to determine the application of the funds. It had, as he knew, determined that they should be applied upon the contract, and not as a payment of the judgment independently considered. Lastly, it is contended that the tender was insufficient.

The reasons given are that it was made to Dyer and Gillett, whereas the judgment was in favor of Dyer alone, and “because it was not an absolute tender, but the money was offered on condition that it should be accepted in full of principal, interest, and costs.” The first of these reasons is answered by what we have said upon another point. The tender was rightly made to the parties whom the contract recognized •as the owners of the judgment. As to the second, no such objection was made at the time of the tender. It was refused upon the ground that the contract was no longer in existence.

This technical objection, now made, appears to be an afterthought. The objection, not being taken, at the time, was waived. Besides, the contract expressly stipulated that upon payment of the money Dyer and Gillett should release the county from all liability upon the judgments, and should acquit it of all liability upon “all of said indebtedness.” It is not contended that the amount tendered was insufficient, or that there was any doubt as to what it was intended to cover. The judgment on the new bonds was already paid.

It would seem, therefore, that the statement that the tender was made in full of principal, interest, and •cost to that date was justified by the express stipulation of the parties. Certainly, such statement was not larger than a demand for the release and acquittance stipulated for, and in Hepburn v. Auld, 1 Cranch, 321, 2 L. Ed. 122, it was held that in such case the tender was not insufficient because it was accompanied by such a requirement. We think the circuit court did not err in refusing the writ, and its order is affirmed.