delivered the opinion of the court.
As we held in this case on the motion to dismiss,
(Fire Insurance Association
v.
Wickham,
. We have.no disposition to overrule or qualify in any way the general and familiar doctrine enforced by this court in repeated decisions, from the case of
Hunt
v.
Rousmanier,
It was not seriously contended in this case that the defendant was not- legally liable upon its policies for the expenses, clearly incidental to the fire, of raising' and saving the vessel, as well as for the direct injury to the vessel in consequence of the fire, and if the plaintiffs were induced to settle their claims for one-half the amount that was due them, and there was no consideration for the relinquishment of the other half, this suit will lie for the recovery of the amount. The rule is well established that where the facts show clearly a certain sum to be due from one person to another, a release of the entire sum upon payment of a part is without consideration, and the сreditor may still sue and recover the residue. If there be a bonafide dispute as to the amount due, such dispute may be the' subject of a compromise' and payment of a certain .sum as a-satisfaction of the entire claim, but where the larger sum is-admitted to be due, or thе circumstances of the case show that there was no good reason to doubt that it was due, the release of the whole upon payment of part will not be considered as a compromise, but will be treated as without consideration and
void. As was said by Chief Justice Waite in
United States
v.
Bostwick,
In this case theye were two distinct and separate claims of similar amount, namely, $15,364.78, one of which was for .the direct lоss and damage to the property insured by the fire, and the other was fpr the incidéntal cost of raising the propeller and her cargo. ' The plaintiffs assumed, upon the face of the receipts, to settle with the' defendant for both of these claims by the payment of the exact amount of one of' them. In-other words, they assumed to settle for a moiety of their entire claim — a claim the legality and justness' of which was so far beyond dispute that it could hardly fail to. be recognized by the. agents of the insurance companiеs who were present at the meeting in New York. Thát they intended and supposed they were making a settlement of the plaintiffs’ entire claim against them is probably true. But, aside from the parol tes- ■ timony given by Wickham of the conversation at the meeting, the admissibility of which is the quеstion in dispute, there was some evidence tending to show that the plaintiff Wickham may have supposed that he was settling only for the direct loss by the fire in the agreement for the survey or appraisement of the damages signed by both parties, which provided that it should nоt “apply to or cover any question that may arise for saving boat and cargo.” There were also other circumstances tending to show that the agents of the companies might, have known that Wickham supposed.he was settling only for the direct loss. First, in the lettеr of Allen, the adjuster, who, in transmitting proofs of loss to the various companies, stated that “ the assured will, make further claims for expenses of raising the propeller, and is now preparing the statement of such expenses to submit with his subsequent claim.” And secondly, in the memоrandum of the meeting of the companies, January 18, Exhibit PP, in which, after reading a communication, from an adjuster at Detroit in relation to the salvage- expenses, a motion was carried “that the request; of the assured to help him out is not granted, but the companies are recommended to. pay the amount of claim as set forth in the proofs of loss.” These items .pf testimony are in *579 consistent with the idea that the agents of the companies did not know of the further claim, and are also pertinent upon the ■question, whether .Wickham understood that he was settling that claim.
(1) But assuming that the receipts upon their face show a •complete settlement of the entire claim for one-half the total amount, what was the consideration for the release of the ■other half
%
The only оne that is put forward for that purpose is that payment was made five days after proofs of loss were furnished, or fifty-five days before anything was actually due by the terms of the policy. • That prepayment of part' of a •claim may be a good consideratiоn for the release of the residue is not disputed; but it is subject to the qualification that nothing can be treated as a consideration that is not intended ns such by the parties. Thus in
Philpot
v. Gruninger,
14
Wall. 570, 577, it is-stated that “nothing is consideration that is not regarded as such by both parties.” To constitute a valid agrees m’ent there must be a meeting of minds upon every feature and -element of such agreement, of which the consideration is one. The mere presence of sonie incident to a contract which might under certain circumstances be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect it must, have, been offered by one party and accepted by the other as one ele-' ment of the contract. In
Kilpatrick
v.
Muirhead,
16 Penn. St. 117, 126, it was. said that “consideration, like every other part of a contract', must be the result of agreement. The parties must understand and be influenced to -the particular action by something of value or convenience and inconvenience rеcognized by all of them as the moving cause. That which is a mere fortuitous, result..flowing accidentally from an arrangement, but in no degree prompting the actors to it, is not to be esteemed a legal consideration.” See also 1 Addison on Contracts, 15;
Ellis
v.
Clark.
The court charged the jury upon this point that the payment of the policy fifty-five days in advance of the time when the same would become due, without discount for interest, was, by itself, a sufficient consideration for waiving the plaintiffs’ further claim in the policies, if it was understood as such.
The question was a proper one for the jury to pass- upon, the charge was' sufficiently favorable to the defendant, and their conclusion, whether correct or riot, cannot be the subject of review here.
(2) Aside from this, howevеr, the circumstances attending the execution of a receipt in full of all demands may be given
*581
in evidence to show that by mistake it was made to express more than intended, and that the crédito- had in fact claims that were not included. Thus in
Simons
v.
Johnson,
3 B. & Ad. 175, which was an action of covenant, defendant pleaded a release, which recited that various disputes were existing between the parties, and that actions had been brought against ■each other which were still pending, but that it had been agreed between them, that, in order to put an end thereto, the defendant should pay the plaintiff £150, and that each should release the other from all actions, causes of action and •claims brought by him, or which he had against the other, and the instrument then proceeded to release “ all claims, demands, аctions whatsoever.” It was held that parol evidence was admissible to show that the claim upon the covenant was not intended to be included in the release, Littledale, J., saying: “There can be no doubt that the matter contemplated in this release was tjie actions there referred to, and parol evidence was admissible to show that the subject matter of the present action was not involved in them.” Other cases to the same effect are:
Lawrence
v.
Schuylkill Navigation Co.,
The appraisement, the letter of Allen transmitting the proofs оf loss and the memorandum of the meeting of the underwriters’ agents are all corroborative of the testimony of the plaintiffs that the committee replied to Wickham, when he asked them for a contribution for the expenses of raising and saving the vessel, that the companies were not liable for such expenses, and that they had no authority whatever for considering the claim for raising and saving the steamer. If this be true, it requires no argument to show that the claim for salvage service was not intended to be included in the receiрts.
There is no doubt that when a receipt also embodies a contract the rule applicable to contracts obtains, and parol evidence is inadmissible to vary or contradict it. But the only *582 clause in these'receipts which can possibly be clаimed to partake of the nature of a contract is that providing for a cancellation and surrender of the policy. There was a similar provision endorsed on the policies. These, however, were inserted in pursuance of a clause in the рolicy to the effect, that the insurance might be terminated at any time, at the option of the company, upon giving notice to the insured and that in such.case he should be entitled to claim a ratable proportion of the premium for the unexpired term for which the policy was to run. The court instructed the jury correctly upon this point, that if they found that the policies were surrendered in consideration of the unearned premiums stated in the receipts, endorsed on the policies, the surrender was nodefencе ; and while it had a tendency to show the plaintiffs’' relinquishment of all their rights under the policy, it was not. conclusive, if the jury found that it was made in consideration of the unearned premiums.
■ There was nothing in the nature of a contract on plaintiffs’part' in the certificate of sеttlement, Exhibit QQ; it was a. mere admission that the- loss and. damage by fire had been adjusted at a certain sum, and should be construed in connection with the submission of December 15, which showed that, it did not apply to any question that might arise for saving- • boat and cargo.
The question certified should, therefore, be answered in the affirmative, and as this was the opinion of the presiding judge, and the case was submitted to the jury upon that theory, the-judgment of the court below will be
Affirmed*