Veazie v. Williams
49 U.S. 134 (1850)

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U.S. Supreme Court

Veazie v. Williams, 49 U.S. 8 How. 134 134 (1850)

Veazie v. Williams

49 U.S. (8 How.) 134

Syllabus

Where false steps are taken to enhance the price of property sold at auction, a court of equity will relieve the purchaser from the consequences and injury caused by these unfair means.

Therefore, where the owners had instructed the auctioneer to take $14,500 for the property, and the real bids stopped at $ 20,000, and the auctioneer, even without the consent or knowledge of the owner, continued to make fictitious bids until he ran it up to $ 40,000, this was a fraud upon the purchaser.

These sham bids could not have been made by the auctioneer upon his own account. Even if they had been so, it is very questionable whether they would have been valid.

Being the general agent of the owners, the latter are responsible for his acts if they receive the benefit of them. By bidding or puffing by the owners, or caused by or ratified by them, is a fraud and avoids the sale.

The sale being made on 1 January, 1836, but the fraud not discovered until 1840, and the bill being filed in 1841, there is no sufficient objection to relief owing to lapse of time.

A release given by the purchaser to the auctioneer, for the purpose of making him a competent witness, did not operate as a bar to a recovery against the vendors. He would have been a competent witness without it.

There was no necessity for making the auctioneer a defendant in the suit.

The various modes of relief examined.

The complainant, Veazie, resided at Bangor in the State of

Page 49 U. S. 135

Maine, and the defendants in Massachusetts, viz., Nathaniel L. Williams at Boston, and Stephen Williams at Roxbury.

The facts of the case were these:

On 1 January, 1836, Nathaniel L. Williams and Stephen Williams were the owners of two mill privileges, situated on Old Town Falls in the Town of Orono and State of Maine. On that day, they offered the property for sale, at public auction, in the Town of Bangor. The whole controversy in the case having arisen respecting the manner in which the sale was effected, it is necessary to state the circumstances as they were disclosed by some of the witnesses. The owners employed Mr. Stephen H. Williams to proceed to Bangor and attend to the sale, who hired an auctioneer by the name of Head to effect it. The most material parts of the transaction are thus stated by Head, who was examined as a witness on the part of the complainant.

"I was employed, in the winter of 1836, by a son of one of the Messrs. Williams, to sell certain real estate in Orono, as an auctioneer. The estate sold was mill privileges, situated in Old Town, near Old Town Falls. It was put up at a minimum price of $14,500, but it is my impression that the minimum price was not fixed or named at the sale, but it commenced at a much lower sum, which I have now forgotten, and run on up to about eighteen thousand dollars; it might have been more or less. I then received from Samuel J. Foster bids, who was the only person that bid, to my recollection, after the sum last named. Foster bid a hundred dollars, and I then advanced upon him; he then bid again, another hundred dollars, or some other sum; I again advanced upon him, and so on, till the bid got up to forty thousand dollars, when it was struck off to Samuel J. Foster. I don't recollect the terms of sale. A certain percent was to be paid down, but what it was I don't recollect."

To the third interrogatory.

"I don't recollect that said sale was conditional, except as I have stated. I don't recollect the sum first offered, but it is my impression that it was something like five thousand dollars. I don't recollect what the bids were from that sum. My impressions are that Samuel J. Foster, Ira Wadleigh, John B. Morgan, and, I think, James Purrington were the bidders. There might have been others. The highest sum bid by any person other than the purchaser was somewhere in the vicinity of eighteen thousand dollars, to the best of my recollection."

To the fourth interrogatory.

"I have already answered, as near as I can recollect, as to the highest sum offered as a bid,

Page 49 U. S. 136

except that at which it was struck off. After other bidders stopped, he, Foster bid a hundred dollars, or so. I then advanced upon him, and he then again bid, and so on up to forty thousand dollars."

To the fifth and a half interrogatory, viz.,

"What was the highest sum offered as a bid at said sale, which you received as a bid, except the bids offered by said Foster? -- It was somewhere about eighteen thousand dollars, as I have already answered. The actual bidders were about to that sum, as near as I can recollect. It is my impression that I advanced from that sum, or thereabouts. I cannot say for a certainty from what sum I so advanced. But I think it could not have exceeded twenty thousand dollars at which the actual bidders stopped, and my impression is that they ceased to bid beyond eighteen thousand dollars."

To the sixth interrogatory.

"I never communicated said facts to said Veazie, to my knowledge. I cannot recollect when I first communicated them to anyone who would have been likely to have communicated them to Veazie. About six months ago, J. P. Rogers, Esq., came to me, and said that he had knowledge of certain facts that I knew. I did not know what he meant. He then referred to the sale of this property. I did not tell him anything about it at that time. He called on me again; I refused, as I did not know but I might implicate myself. Afterwards, he called again, and I then told him, if Veazie would give me a writing holding me harmless, I would state the facts. He said he would give me such a writing, as attorney for Veazie, which would be good. He did so, and I then went forward and gave my deposition in a case between the parties, as to the facts of the case."

To the ninth cross-interrogatory.

"Said defendants, nor any agent of theirs, did not request me to employ any by-bidder at the sale, nor to use any other than fair and lawful means to enhance the price of the said property."

Samuel J. Foster who was the person employed by Veazie, the complainant, to bid for him thus testified:

To the second interrogatory.

"I did attend said auction sale in the winter of 1836. It was held on 1 January, 1836, at the Penobscot Exchange, in Bangor. Certain mill privileges and appurtenances, situate near or on the Old Town Falls, was the property sold."

To the third interrogatory.

"The highest sum bid for said property was forty thousand dollars. I bid it, and was acting and bidding for Samuel Veazie."

To the fourth interrogatory.

"Previous to the sale, I was

Page 49 U. S. 137

instructed by General Veazie to bid to the amount of twenty thousand dollars. At the time of the sale, after the bidding had gone up to twenty thousand dollars, Mr. Veazie came to me, under considerable excitement, and told me to advance and bid it off. I have no distinct recollection what my first bid was, but my impression is that I commenced with about five thousand dollars. It advanced pretty rapidly till it amounted to fifteen or sixteen thousand dollars. I think, between that point and twenty thousand, the bidding was not very prompt, but it went on finally from twenty thousand till it was struck off to me at forty thousand dollars. I think I did not communicate my relation to General Veazie to anyone, until the property was knocked off. I then notified Mr. Bright, the agent of the defendants, a Mr. Williams, the son of one of the defendants, and Mr. Head, the auctioneer, that I bid for General Veazie, and the parties made arrangements to meet, the afternoon of the same day, at the office of William Abbott, Esq., in Bangor, to settle and close the business."

To the fifth interrogatory.

"John Bright, who acted as agent, and a Mr. Williams, son of one of the defendants, were present, apparently acting for them. I have no recollection of their making any remark at the time of sale, nor that they did anything, at that time, about the sale."

To the fifth and one-half interrogatory.

"My impression is that I saw or heard no bidding after it got up to sixteen or eighteen thousand dollars. The biddings, audibly, or by signs, then ceased to be known to me. I observed Mr. Wadleigh, and believe he was present from the beginning to the close of the sale. My impressions are very strong that I noticed Mr. Wadleigh's biddings till it reached to sixteen or eighteen thousand dollars. After that, I am positive that there were no signs, or open bids, that would enable me to discover who, or that anyone, was bidding against me. I endeavored to discover if Wadleigh was doing so, and could find no sign or nodding from him, or from anyone else."

Ira Wadleigh, also a witness on the part of the complainant, thus testified:

To the second interrogatory.

"I know the property, and that it was sold to Samuel J. Foster at forty thousand dollars. About a month before the sale I was in Boston, and called on Nathaniel L. Williams to see if he would sell me the property. He said they thought of putting it up at auction, and would let me know in a few days, as soon as he could see his brother Stephen. I advised him to sell, so that mills could be built that winter. On coming out of Boston, I met Stephen Williams'

Page 49 U. S. 138

son, Stephen H. Williams, who was coming down to see to selling the property, and after he reached Bangor, I saw him here, and talked with him about the property, and asked him if he would sell it at private sale. He told me he would sell it for fifteen thousand dollars or thereabouts -- I think he told me so. Afterwards it was advertised to be sold at the Exchange in Bangor. Stephen H. Williams appeared to be acting for the defendants."

To the third interrogatory.

"The property was sold at auction; I was present at the sale, and bid I cannot say how many times, nor what sums I bid; but somewhere from fifteen to twenty thousand dollars. I don't remember bidding over twenty thousand dollars, although I might have done so. Nicholas G. Norcross bid; I think Myrick Emerson bid, and Samuel J. Foster and some others; but I do not recollect who. I cannot tell how much they bid, but from where it started up along, but how far I cannot say."

To the fourth interrogatory.

"When they first commenced, the bids were audible, and properly made; but after they got up to twenty thousand dollars and over, it was by signs."

To the fifth interrogatory.

"I saw General Veazie at the auction; he was about the room there; and was walking back and forth in the long entry part of the time. I did not see anything very particular in his manner. I did not mind much about it."

To the sixth interrogatory.

"I talked with Head before the sale, and told him I wanted to buy it. He asked me how high I would go. I told him to seventeen thousand dollars, if I could not get it for less. I agreed with Norcross to take it at that sum, and told Head that I would hold my pencil between my thumb and forefinger, and turn it for a bid. I soon went up to twenty thousand and upwards, and stopped. I found the bidding was going on without my nodding, turning my pencil, or making any sign, and stepped up to Head, and asked him if he was bidding for me. He made no answer, and I said, 'For God's sake, don't bid any more for me,' and went and sat down and bid no more. After the sale, I had a conversation with young Williams, and, I think, told him how the bidding went on; but he must have seen it, as he was sitting behind, and close to Mr. Head. He said he was surprised at the sale; that the property sold for much more than they expected."

To the seventh interrogatory.

"There were four privileges; and they were not then actually worth more than two thousand dollars a privilege. I don't believe it would sell today

Page 49 U. S. 139

for four thousand dollars at auction -- the whole property, that is, the four privileges."

Four other witnesses, viz., Myrick Emerson, Levi Young, Richard Moore and Isaac Smith, who were present at the sale, were examined on behalf of the complainants, whose evidence corroborated that of the preceding witnesses, as far as mere spectators could have any knowledge of the transaction.

Ten witnesses were examined on the part of the defendants. Stephen H. Williams, the authorized agent of the owners of the property, thus testified:

"My name is Stephen H. Williams. I am thirty-four years old. I am a merchant, and reside in Roxbury; I know the said parties. Mr. Veazie resides in Bangor, and is the president of a bank; I don't know his occupation. Mr. Williams resides in Boston, and is retired from business; he is my uncle."

"To the second interrogatory he says:"

" In the winter of 1835-1836, I was employed by the defendants to go to Bangor, and act as their agent in selling at auction certain mill privileges, at Orono or Old Town; I went to Bangor; the sale took place, January 1, 1836; the property was sold by Henry A. Head, as auctioneer, and was knocked off to a man named Foster but Mr. Veazie was the purchaser. The price was forty thousand dollars."

"To the third interrogatory he says:"

" On arriving at Bangor, being a stranger, I made inquiries of Mr. John Bright as to who was the most respectable auctioneer in the place, and he referred me to Mr. Henry A. Head, as the person employed in disposing of the government lands, and in his opinion the most desirable auctioneer. I accordingly applied to him to dispose of the property, and he consented to do so. On the day of the auction, previous to commencing the sale, he asked me what amount was to be paid to him for his services; being unacquainted with the amount of commissions usually paid to an auctioneer, I told him that he should be paid what was customary. Nothing further was said respecting his fees previous to the sale."

"To the fourth interrogatory he says 'I have already answered this interrogatory in my reply to the third interrogatory.'"

"To the fifth interrogatory he says:"

" I did not authorize, or request, or in any way suggest to the said auctioneer, to bid himself on the said property, or employ any other person to do so, or to do or permit anything unfair, unusual, or in any way improper, to be done at the said sale to enhance the price of the said property, and I did not know, nor had I any reason to believe, that he intended to do so. "

Page 49 U. S. 140

"To the sixth interrogatory he says 'I did not, nor did anyone authorized by me, make any bid on the said property at the said sale.'"

"To the seventh interrogatory he says 'I knew the said Wadleigh, at the time of the sale, so as to speak to him; he was present at the sale.'"

"To the eighth interrogatory he says:"

" I did see the said Wadleigh, while the sale was going on, go up to the auctioneer and speak to him; the bid had then gone to thirty-nine thousand dollars. He did not go up and speak to him more than once; I am distinct in my recollection on this point."

"To the ninth interrogatory he says:"

" I did ask the auctioneer immediately after the sale what Mr. Wadleigh had said to him, when he came up to him during the sale, and he replied to me that, on going into the room immediately previous to the sale, Mr. Wadleigh gave him unqualified authority to purchase the property for him, or, in other words, had told him that, when the property was knocked off, it was to be his (Wadleigh's). He (the auctioneer) also told me that when Wadleigh came up to him on that occasion, he said to him 'For God's sake stop, and bid no more for me.'"

"To the tenth interrogatory he says:"

" The property was knocked off to a Mr. Foster but after the sale, much to my surprise, I found that Mr. Veazie was the purchaser. He had told me previous to the sale, that he would not give more than twelve thousand dollars for it. He immediately desired a bond for the delivery of the deed. The bond was accordingly drawn, with a penalty of fifty thousand dollars, for the delivery of the deed, at Bangor, within ten days or a fortnight. After receiving the bond, and while he was folding it up, he said to me that he thought it proper to state, now that he was secure himself, that an express had been fitted out for the purpose of purchasing this property before the news of the sale, by auction, could reach the owner, and it is my impression that he said that Mr. Wadleigh was engaged in it, but of this I am not positive. I left to go to Boston and obtain a deed and return to Bangor. I remained in Boston a day or two to complete the deed, which having been done, I set out to return to Bangor. Between Boston and Portsmouth I found, by some conversation with the passengers, that Mr. Veazie had passed us on the road going to Boston. I accordingly made arrangements to return to Boston and meet him, and thus save my journey to Bangor. On returning to Boston, I found he had left there an hour or two previous to my arrival. A day or two after, I started for Bangor again and overtook Mr.

Page 49 U. S. 141

Veazie at Portland. We then traveled together to Bangor. During the journey, he told me that he had made up his mind to give forty thousand dollars for the property; that it had been canvassed in his family, and arrangements been made to that effect, and that he had secured this Mr. Foster to hold him harmless to that amount, and that the journey he had made to Boston was to obtain knowledge that I had a deed for him, as he was suspicious, on the return of those who went on the express, that they had succeeded in their design. And by way of showing his anxiety, he told me that he had left Bangor for Boston on the evening of a large party given by his wife. He said that the value of this property to him was caused by a quarrel and law suit between him and Wadleigh, which rendered it of vast importance to either of them to obtain the property. He also said that he had traced the person who conducted the express as far as the Tremont House, and there all trace of him was lost."

"To the eleventh interrogatory he says:"

" Previous to and on the morning of the sale, Mr. Veazie manifested much indifference as to the purchase of the property, observing that he would give twelve thousand dollars for it, and no more. Of course I was surprised when I found he had given forty thousand dollars for it."

"To the fourth cross-interrogatory he says:"

" Immediately after the sale, I was informed by the auctioneer, that, when Wadleigh stopped him at thirty-nine thousand dollars, he (the auctioneer) then bid the remaining one thousand dollars on his own responsibility, alternately with Foster. On my return to Boston, I related this (with everything else that had transpired) to the defendants, my employers."

John Bright, who was the agent for the owners of the property prior to the arrival of Stephen H. Williams, thus testified to the fourth interrogatory:

"I did not, nor did anyone to my knowledge or belief, request or authorize, or in any way suggest to the auctioneer, or any other person, to bid at said sale, in behalf of the defendants, or to make any fictitious or pretended bid at the said sale, or to do anything, or permit anything to be done, unfairly, to enhance the price of the said property."

To the fifth interrogatory:

"I did attend the sale. I did not bid on the property, nor did I then know, nor had I cause to believe, that said auctioneer was himself bidding on the said property, nor that anyone was bidding on said property for the defendants, or was using any unfair means to run up said property, or to enhance the price thereof. "

Page 49 U. S. 142

The witnesses all concurred, that there had been a great depreciation in the market value of mills and mill privileges since January 1, 1836.

The terms of sale were ten percent of the purchase money payable immediately, and twenty percent more upon the delivery of the deed. These two sums together made $12,000, all of which was paid by Veazie. The balance, being $28,000, was divided into two notes of $14,000 each, payable in one and two years. The first was also paid, and the interest upon the second up to 1 January, 1840. The amount still due was therefore one note of $14,000, with interest from 1 January, 1840. Upon this note suit was brought against Veazie, prior to the filing of the bill in this case.

These were the circumstances attending the sale, as stated by the principal witnesses.

On 21 July, 1841, the following release was executed by Veazie to Head, viz.:

"Know all men by these presents, that I, Samuel Veazie, of Bangor, in the county of Penobscot, and State of Maine, Esquire, in consideration of one dollar to me paid by Henry H. Head and Nehemiah O. Pillsbury, both of said Bangor, auctioneers, and late co-partners in the auction business, under the firm and style of Head and Pillsbury, the receipt whereof I do hereby acknowledge, do hereby release and discharge said Head and Pillsbury, jointly and severally, from all damages by me sustained, or supposed to be sustained, and from all action, or causes of action, to me accrued, or accruing in consequence of any misfeasance, nonfeasance, or malfeasance, or any illegal management by them done, performed or suffered, at the sale at auction of Nathaniel L. Williams and Stephen Williams' real estate, situated in Old Town, in said County of Penobscot, on or near Old Town Falls, so called, which was sold at auction on or near January 1, 1836, by the said Head and Pillsbury, as auctioneers; hereby, also, releasing the said Head and Pillsbury from any claim for damage, by or in consequence of any of their proceedings relating to said sale of said property."

"In witness whereof, I have hereto set my hand and seal, this 21 July, A.D. 1841."

"SAMUEL VEAZIE [L.S.]"

This release was introduced into the cause by agreement of counsel, filed at a subsequent stage of the proceedings, by which agreement it was admitted that neither the respondents nor their counsel had any knowledge of the existence of the

Page 49 U. S. 143

release until after the publication of the evidence in the suit, and also further admitted, that the release and circumstances under which it was given might be referred to and made use of in the cause with the same effect as if the same had been put in issue by a cross-bill and admitted by the answer. It will be seen by referring to the third volume of Story's Reports, page 66, that Mr. Justice Story did not consider this agreement as a proper mode of introducing the release into the cause, when it came up before him for argument. According to his suggestion, the proper steps to do so were immediately taken by filing a supplemental bill. These remarks are here made for the purpose of connecting the report of the case in 3 Story 54, with this statement.

On 23 July, 1841, Veazie filed his bill of complaint on the equity side of the Circuit Court of the United States for the District of Maine.

The bill stated that on January 1, 1836, defendants owned two mill privileges in Maine, and on that day offered them for sale, at auction, at Bangor, in Maine, employing one Head as auctioneer, and, by themselves or agent, instructed Head to put them up, beginning with $14,500, minimum, and prescribed certain conditions of sale as to payment; that the complainant, relying on the good faith of defendants and of Head, attended the sale, and bid, by one Foster as agent, and, the minimum having been offered, Head continued to announce a still higher sum, and Foster supposing it fair and honest, made a still higher bid, and so on until said property was struck off to Foster for the plaintiff, at $40,000. And thereupon the complainant, supposing the sale had been conducted and the bidding made in good faith, complied with the conditions of sale, paid $4,000 in cash, $8,000 more on delivery of the deed, gave his note for $14,000 in one year, with interest, which he has since paid, and his other note for $14,000 in two years, with interest, on which he has paid the interest annually to January 1, 1840. And defendants executed a deed to complainant, and complainant a mortgage of same to defendants to secure said notes, and another of $1,900, received as part of the $8,000 aforesaid.

The bill further alleges, that there was no real bid at said auction for more than $16,000 or $18,000; but that the auctioneer, by sham bids, run up said Foster from about $16,000 to $40,000, Foster's being the only real bona fide bids over about $16,000; by means of which pretended bidding and management of the auctioneer, defendants have received from the complainant a large sum of money which they ought not

Page 49 U. S. 144

to have received, and so the complainant has been deceived and defrauded.

The bill further alleges, that complainant discovered the fraud since January 1, 1840, and notified defendants of it, and hoped they would have refunded the money; but they not only refused to rescind, but have commenced a suit on the unpaid note, which is now pending in this Court, and attached complainant's property.

The defendants are requested to answer specifically:

1. Whether they authorized the sale, and employed Head as auctioneer.

2. Whether the land was put up at the minimum stated, and if Head was directed not to sell for less, and authorized to bid for defendants to that extent.

3. What sum they agreed to pay Head, prior to the sale; what they did pay; was he to be paid any sum if there was no sale; how he was to be paid.

4. What amount, principal and interest, complainant has paid defendants.

5. Whether the note on which defendants have brought a suit is one of those given for said purchase.

6. Whether the whole purchase money was not paid and secured by complainant, and the deed given directly to him, and whether it was not stated and understood, at that time, that Foster acted simply as complainant's agent at said sale.

The prayer of said bill is that said suit may be enjoined, the note delivered up, the sale rescinded, and the money paid back with interest.

The answer admitted the ownership, and that defendants employed one Bright to advertise the property for sale at auction on January 1, 1836. That a few days before the sale they sent Stephen H. Williams, a son of one of the defendants, to Bangor, to employ an auctioneer and make all necessary arrangements. The defendants denied having instructed, intimated, or suggested to Williams, Bright, or any other person, that there should be any by-bidding or other unfairness; or that, before said sale, said Williams, Bright, the auctioneer, or any other person, received from defendants any instruction or suggestion that said property should be run up by fictitious bids, or that anything unfair should be done.

They admit that they did fix $14,500 as a minimum, but aver that they gave no instructions to keep the same secret; that they believe the fact was well known at the sale; that they have been informed, and believe, that no bid was made by any agent of theirs in consequence of the fixing of the said minimum price, bids far exceeding that amount being immediately made by those desiring and intending to purchase.

The conditions of sale, as to payment, are admitted to have been as stated in the bill.

Page 49 U. S. 145

The answer admitted that Stephen H. Williams employed Head as auctioneer, who was said to be duly licensed, skillful, experienced, and believed to be honest. The defendants aver their belief that said Williams did not authorize or suggest any by-bidding or other unfairness by Head, but employed him as a public officer, duly empowered by the laws of Maine. They further aver that they have been informed and believe that said Williams did not authorize Head to bid up to the minimum, or to make any bid on their account.

The defendants aver that they were not present at the sale, but deny that there was no real bid above $16,000 or $18,000, or any such sum, or that the auctioneer run up Foster by sham bids, from $16,000, or any such sum, to $40,000, or that there was no real bid above $16,000, or any such sum.

Defendants admit that complainant informed them, after the sale, that Foster was his agent, and allege that complainant exhibited great anxiety to have the conveyance made, and they have been informed, and believe, that there was great competition at the sale, both on account of the intrinsic value and the local position of the property, and that complainant authorized Foster to bid as high as $40,000.

Defendants completed the sale, gave a deed, received payment of all but the last note, and interest on that to January 1, 1840, but complainant did not notify defendants that he considered the sale invalid until January 14, 1841, and they then brought a suit, as alleged.

That more than five years and six months have elapsed since said sale, and defendants have lost the benefit of evidence as to occurrences at said sale, and there has been a great depreciation in such property, owing to an increase in the number of mills, the scarcity of timber, and financial difficulties in that region, by which mill sites have much depreciated in value; and defendants believe that changes have been made in the property by building or altering.

The defendants do not know when in particular the complainant pretends to have discovered the alleged fraud, but whatever was done at the sale might have been known, on inquiry, at any time, and they pray for proof of diligence.

They believe that complainant, since the changes in value, would gladly annul the bargain, and compel defendants to repay the price, and pay for his expenditures, but they submit that this ought not to be, after such a lapse of time and the changes in condition and value, especially as they deny the fraud alleged, and any concealment, on their part, of anything done at the sale.

Page 49 U. S. 146

That S. H. Williams agreed to pay Head for his services what was customary, and did pay him $200, after the sale, which defendants think was reasonable, and there was no agreement that Head was to receive nothing if no sale was effected.

It has been before mentioned that when this cause came up for argument before Mr. Justice Story as reported in 3 Story 54, he suggested that a supplemental bill should be filed, for the purpose of properly introducing the release to Head into the cause.

The supplemental bill alleged that Head paid no consideration for the release, and made no satisfaction; that it was not intended as a discharge of any claim against the defendants, and if such was its effect, it was a fraud and a mistake; that it was given because Head refused to disclose the facts, on the ground that complainant might sue him, and complainant wished to obtain proof with a view to institute proceedings in equity against defendants; that the whole agreement with regard to it was between Head and complainant's counsel, and it was signed by complainant without inquiry, and without any negotiation between Head and complainant, and no indemnity against Head's liability to defendants was asked or intended. The supplemental bill then prayed that said release may be reformed and restrained to the true intention of the parties.

The answer to this supplemental bill stated that the existence of the release was not discovered by defendants until after the testimony had been taken in the original case; that defendants now insist on it as a bar; do not know whether any consideration was paid for it; and as to the intentions of the parties, or any understanding as to its legal effect, no fraud was practiced to procure it to their knowledge, or any language used that was not intended by complainant, by whom it was signed by the advice of counsel and under no mistake of fact, and it is not competent for him to control or alter it by extrinsic evidence. They have no knowledge of the intentions of the parties to it, or what inducements or agreements led to it. They have been informed by Head that Veazie's counsel promised him an indemnity, and this was accordingly given. They deny that Head expected that, after said release, he would be liable to any action by defendants, or any construction given to the release which would prevent his being held harmless against them.

To this answer there was a general replication.

On 3 August, 1844, a bill of revivor was filed against Louisa Williams, the widow and executrix of Stephen

Page 49 U. S. 147

Williams, deceased, and at May term, 1845, the bill was revived by consent of counsel, and the cause set down for hearing.

At the same term it came on to be heard upon the bill, answer, pleadings, and evidence, when the judges of the court, being divided in opinion on the merits of the cause, ordered and decreed that the bill be dismissed, without costs to either party.

This decision is reported in 3 Story 612.

An appeal from it by the complainant below brought the case up to this Court.

Page 49 U. S. 149

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