LAFITTE V. SITAWCROSS.
10 Illd.102. It does not arise till ·judgment. Potter ... Mayo,3 Me. 34, Getchell v. Clark, 5 Mass. 309; Sweet v. Bartlett, 4 Sandf. 661; Foot v. TewksbwrY,2 Vt.97. See Casey v. March, 30 Tex.180. Nor does it. cover all compensation which may be due by special agreement, (Eal parte Kyle 1 Cal. 331; Mansfield v. IJorland, 2 Cal. 507; Wright v. Cobleigh, 21 N. H. 339; Wells v. Hatch, 43 N. H. 246; Phillips v. Stagg, 2 Edw. Ch. 108. Compare IJennett v. Cutts, 11 N. H. 163; Fowler v. Morrill, 8 Tex. 153;) and is limited to specific fees or disbursements taxed as costs, and included in the judgment. Humphrey v. Browning, 46 Ill. 477; Rooney v. SecondA'V. R. Co. 18 N. Y. 368; Warfield v. Campbell, 38 Ala. 527; Forsythe v. BeVeridge, 52 lit 268. An attorney cannot obtain a lien' on a decree rendered in a pro:. bate court on a guardian's final settlement. McCaa v. Grant, 43 Ala. 262. The lien is waived by procuring satisfaction ()f the jUdgment, and perfecting the client's .title to lan.d attached in the action. Cowen v. Boone, 48 Iowa, 350. An attorney cannot obtain a lien under the Oregon Code unless he has a special agreement as to the amount. In re SC1'o.qgin, 5 Sawy. 549. Lien on substitution of attorney. See Career v. U. S. 7 Ct. C1. 499; Sup'rs v. Broadhead, 44 How. Pro 411; lei. 426; Leszynsky v. Merritt, 9 FED. REP.
LAFITTE 'V. SHAWCROSB.
(Circuit Court, Eo D. Loui8iana. January, 1882.)
1. UNILATERAL CONTRACT-EVIDENCE.
Parol evidence is admissible to prove the consideration of 8 unilateral contract made in writing against the person seeking to enforce the same.
When a written contract confined to one undertaking by one party, although a presumption arises, in the absence of proof to the contrary, that the parties expressed the whole of their intentions in respect to thesubject.matter, yet that presumption may be rebutted by express evidence that what was so written was intended as a mere memorandum of one part or branch only of a mere general agreement; or it may be shown that a parol contract was made independently, wholIy collateral to and distinct from a written one made at the lame time. Where a written contract expresses no consideration, a consideration may be proved, even when it consists of a distinct contemporaneous vel'. bal undertaking.
Oarleton Hunt and O. H. La1,illebeuvre, for plaintiff. B. F. Jonas, I. 8. Hyams, and D. O. et L. L. Labatt, for defendant. BILLINGS, D. J. In this case the plaintiff had been the agent of the defendant in the purchase of cotton. His commissions ordinarily had been i per cent. upon the purchasos. To recover these commie.
tReported by Joseph P. Hornor, Esq" of the New Orleans bar.
upon that basis this suit is it uppel1red in evidence that some difference "'Dsted between the plaintiff and defendant as to what the commissions should be for the months of Reptember, October, and November, 1880, and that on the eighteenth day of November the plaintiff handed to the defendant the following letter, signed by him:
"NEW ORLEANS, 18th November, 1880. "R. Esq.-DEAR SIR: Having conversed with you this A. M. upon your business, I will agree to charge you only three-eighths of 1 per cent. on all business done during the months of September, October, and November, 1880. "I am very truly yours, JAMES .A. LAlnTTJl:."
t per cent., and its writing and delivery having been admitted by the
plaintiff, he offered to introduce parol evidence tending to show that during the conversation in which the agreement, as evidenced by the letter, was made on his part, and as the consideration of the same, the defendant agreed to continue him as his agent, which last agreement the defendant had violated. The court excluded the evidence, and judgment was given for the defendant, with leave to the plaintiff to move for a new trial at the present term. The question is, can a party who executes a unilateral contract in writing, which does not recite the consideration, prove that the consideration of the contract was another and distinct verb91 agreement or undertaking on the part of thl1 person seeking to enforce the written contract? I shall first consider the question in the light of the comn:on-Iaw authorities. The rule is universal that parol evidence is not permissible to contradict or vary· the terms of a written instrument; but when, as here, the writing is confined to one undertakiug by one party, although a presumption arises, in the absence of proof to tv" cO:i1trary, that the parties expressed the whole of their intention in respect of the subject-matter, yet that presumption may be rebutted by express evidence that what was so written was intended as a mere memorandum of one part or branch only of a more genera' agreement, or it may be shown that a parol contract was made independently, wholly collateral to, and distinct from, a written one made at the same time, Starkie, Ev. part 4, marginal paging 1049 and 1050. The case cited in the note is Russell v. Dunskey, 6 Moore, 233, where there was a written adjustment under a policy of insurance, and parol testimony
This letter having been pleaded as a remission of all beyond the
was admitted of a contemporaneous agreement to refund. The rule in England is well stated by Chief Justice Erle, in Lindley v. Lacey, 17 Com. B. 586, (112 Eng. Com. Law,) as follows:
"If the instrument shows that it was meant to contain the whole bargain between the parties, no extrinsic evidence can be admitted to introduce a term which does not appear there; but if it be clear that the written instrument does not contain the whole. and the jury find that there was a distinct collateral verbal agreement between the parties, not inconsistent with the written contract, the law does not prohibit such distinct collateral agreement from being enforced."
In Tisdale v. Harri8, 20 Pick. 9, where the plaintiff had given' a written agreement to buy property, the court admitted parol evidence to show upon what conditions the defendant was to sell. In Oampbell v. McClenachan, 6 S. & R. 171, the court held parol evidence may be given of what passed between thepartills a.t and immediately before the execution of a written instrument by one 'Party, where a verbal promise made by the other party induced him to execute the instrument. In The Alida, 1 Abb. Adm. 179, Judge Betts, after a consideration of the authorities, lays down the principle to be that the written instrument was binding, so far as it went; but that, as to such parts of the contract as were not embraced within the writing, parol evi. dence was admissible. In Potter v. Hopkin8, 25 Wend. 417, the court say: "Where a. contracts rests part in writing and part in parol, oral proof is ad. missible to supply the deficiencies in the part written, if the contract be of such a nature as is not required to 'be in writing." I think that it is clear from these authorities that, at the common law, the testimony is admissible. The decisions in Lonisiana are but an exposition of article 2276 of the Civil Code of Louisiana, which provides. as follows: "Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them, nor since." The rule thus laid down has been rigidly enforced in Lynch v. Burr, 7 Rob. (La.) 100; Henderson v. Stone, 1 Martin, (N. S.) 641; Gould v. Bridgers, 8 Martin, (N. S.) 692; Wilson v. Phillips, 4 La. Ann. 159; Macarty v. Gasquet, 11 Rob. 275; and in Selby v. Friedlander, 22 La. Ann. 881. . It is difficult to reconcile these cases with Klein v. Dinkgrave, 4, La. Ann. 5:t-O; Delabiga'l'f'6 v. Second Municipality, 8 La. Ann. 285; and Saramia v. Courrege, 18 La. Ann. 25. These last three cases hold
that parol testimony may be introduced to show, as between the parties, the cause (i. e., the consideration) of the contract, even when they add to its terms. See, also, the views of the court in Robertson v. Nott, 2 Martin, (N. S.) 125. What the plaintiff here asks to prove is the consideration, which was a separate undertaking. A careiul study of all the authorities would lead me to the conclusion that if the consideration had been expressed in the written papers, under our law nothing could be added to the writing. But as no consideration is expressed, and the letter purports to be and is pleaded as a remission of a portion of a. claim to ascertain whether it be operative, the court must 8sce.dain whether it was in fact founded upon a considEll:ati<m; for, according to Civil Code, art. 1893, an obligation without a ca'use!lan have no effect. Though an agreement may be valid without any expressed cause, a sufficient cause must be shown to exist or the letter would be of no effect. This necessitates the admission of the evidence as to the consideratiQn of the prolllise or remission contained in the letter. A 'new trial must, therefore, be gManted.
'UNITED STATES V. NICHOLSON.
(Dutrlct (lourt, D. Oregon. June 14, 1882.)
SPACE APPROPRIATED TO PASSENGERS.
A space upon a vessel bringing passengers into United States, under the act of March 3, 1855, (10 St. 715; section 4252, Rev. St.,) is not" appropriated" to their use within the meaning of the term, or the object and poliey of the statute, unless it is given up to their eq;clusitJe use j and therefore the dining saloon of a steamsllip carrying Ohinese passengers from Hong Konl/; to Portland, Oregon, in 'wllich such passengllrs were allowed to go and come during the day, 'but to which no number of them were allotted or assigned, and in which they neither ate nor slept, was not a space appropriated to their use.
Information for ViohLtion of Passenger Act.
J. F. Watson, for plaintiff.
JohnW. Whalley, for defendant. DEADY, J. On March 29, 1882, the British steam-ship Glenelg sailed from the port of Hong Kong with Chinese passengers for this with them on May 7th. port, and Op May 20th the attorney filed an informati9,l,l.against the defendant, charging him, as of said 'vessel, with a of