Page:Hempstead's Reports.pdf/341

316   S. H. Hempstead, district attorney, for the United States.

F. W. Trammall and John W. Cocke, for defendants.

OPINION OF THE COURT.—This action of debt is founded on a contract in writing, under a penalty of twenty thousand dollars, conditioned to perform certain articles of agreement entered into at the same time, namely, the 8th of December, 1837, between Lorenzo N. Clarke and the government, to furnish rations to the Chickasaw Indians. The penal bond, with the conditions thereunder written, and the articles of agreement, constitute but one agreement, upon which the United States have brought their action.

The defence disclosed by the defendants,—seventh, eighth, and ninth pleas, to which the district attorney has demurred,—is a subsequent agreement by the defendant Clarke with the plaintiffs, obligating himself to deliver to the United States rations of beef, corn, and salt, at a specified price, for all the Seminol Indians who should emigrate west during one year after the date of the contract, and stipulating that he should be entitled to a credit of five and a half cents for every ration of subsistence so delivered upon his indebtedness under the contract upon which the present suit is based.

The defendants fail to aver in their pleas that any rations were in fact delivered under the latter contract; but they do allege that this latter agreement was received by the plaintiff in full satisfaction and discharge of the covenants and stipulations contained in the contract referred to in the declaration.

By adverting to the terms and provisions of the latter, it appears manifest that it was not the intention of the parties that it should operate by way of discharge and satisfaction of the obligations incurred by the first agreement, for it provides expressly that for each and every ration delivered by Clarke, he should be entitled to a credit of five and a half cents on the first contract, so that he might liquidate and pay his debt due to the plaintiffs under the same.

The contract set out in the pleas affords intrinsic evidence not to be mistaken, that the parties to it never intended it as a discharge and satisfaction of the previous contract, but, on the contrary, they manifestly intended that the first contract should