#### Truett *v*. Chaplin.

From Tyrrel.

Where a law suit is pending between two parties relative to the title of a vessel, and they enter into a parol agreement to settle all law suits and matters in controversy between them; and afterwards the plaintiff in the law suit, instead of dismissing it, takes a judgment by default, and is thereupon sued on his breach of the contract of settlement; in such suit either party may introduce parol evidence to show how his rights, as to the vessel, stood at the time of making the contract of settlement, because by so doing it would more satisfactorily appear whether those right» were taken into consideration in making the settlement.

The compromise of a doubtful right is a sufficient foundation for an agreement.

*Chaplin,*the defendant in this action, had brought an action of trover in Currituck County Court, against *Truett,*the present plaintiff, to recover damages for the conversion of a certain vessel called the Farmer’s Daughter; both parties claiming to have title to the vessel.

*Chaplin*had also stayed *Truett,*by injunction, from carrying away the vessel.

During the pendency of these suits, and before *Truett*had pleaded to the action of trover, or answered the bill of injunction, *Chaplin*and *Truett*came to a parol agreement to settle all law suits and matters in controversy between them. *Truett,*in compliance *with*his part of the agreement, delivered to *Chaplin*his obligation for §§75, and his written promise, with security thereto, to deliver to *Chaplin*100 gallons of molasses on a certain day; arid *179
      *Chaplin,*in consideration thereof, agreed to dismiss his suits within ten days and pay his own costs; and in farther performance of tiie agreement, *Chaplin*gave to *Tru-ett*a receipt for six dollars in full of all demands and law-suits which he. *Chaplin,*had against him, *Truett.*

After this' agreement between the parties, *Chaplin,*Without the knowledge or consent of *Truett,*took a judgment by default in the action of trover, afterwards executed a writ of inquiry, and obtained final judgment for $2,240, issued his execution, caused it to be levied on the Farmer’s Daughter, then in *Truett’s*possession, sold her under the execution, and became himself the purchaser at the pi'ice of $750, and took the vessel and carried her away.

For *Chaplin’s*breach of contract, *Truett*brought tiña action in Tyrrel County Court, whence it was carried by appeal to the Superior Court, and tried before Dajt-iel, Judge.

*Truett,*on the trial, proved by the only three witnesses, who knew any thing of the contract, the terms of it as in substance above stated; and farther, that *Chaplin,*when he made it, was not intoxicated but sober; that it was. made between the hours of eleven and three of the 21st day of June, 1822. He proved also, by the person who wrote the receipt for $6 before mentioned, the signing of it by *Chaplin,*though the witness did not see the money paid.

The defendant, in his defence, alleged, that he expected to prove that *Truett,*at a sale made by a wreck master in Carteret county about two years before this contract, purchased the Farmer’s Daughter for *Chaplin,*the former owner, and afterwards held her claiming her as-his own. This evidence was objected to, but the Court received it. And much contradictory evidence was given of the declarations and conversations of the parties, tending to show that, at the time of the contract, the title to the. Fawner’s Daughter was in the one or the. other.

*180
      *Chaplin*contended, also, that the two notes which *Truett*had given him as aboye mentioned, were for the freight of the vessel from North-Carolina to Bermuda.1

The Court charged the jury, that if the defendant agreed to dismiss his suits in Currituck and did not do it, the plaintiff was entitled to recover; and if they should be satisfied that *Truett*had purchased the vessel at. a wreck sale, or had title to the vessel, then they should give damages to the amount of her value; but if they were of opinion that the vessel belonged to the defendant, and the sums mentioned in the .two notes were the price of the-freight of the vesseHo Bermuda, then the plaintiff was entitled to recover but nominal damages for the breach of the contract, as no other property was levied on> or other injury shown. The Court farther charged, that if the vessel was the property of the defendant, the agreement to dismiss the suits in Currituck, on a settlement of all transactions between them, did not divest the, defendant of his property in the vessel; but that the defendant would be permitted to set up his title whenever he could fairly get the possession. All the plaintiff could claim would he damages for a breach of contract.

Yerdict for defendant, new trial refused, judgment and appeal.

*Gaston,*for appellant.

*L. Martin,*for appellee.

Hade, Judge. —

There are two objections made in this case to the opinion, of the . Court. The first relates *to*testimony offered by the defendant; the second to the charge given to the jury. With respect to the first, I think it is not sustainable. The contract by which it was alleged the parties had settled their disputes, was not committed to writing, and there could be no objection to either party’s showing how their rights stood at the time when such contract was entered into, because by doing jR)> it would more satisfactorily appear whether thoS'e *181eights were taken into consideration and included in it. It they were included in the contract, such evidence would not and ought not to have any tendency to invalidate it; if they were not, the contract, as to them," was a nullity, and the evidence was properly allowed.

The other objection is, that the jury were told “ that if the vessel was the property of the defendant, the agree-went to dismiss the suits in Currituck, on a settlement of all transactions between them, did not divest the defendant of his property in the vessel, but that the defendant would be permitted to set up his title whenever he could fairly get the possession.”

This objection I think sustainable, because if the right of the vessel was an item in the settlement of all transactions between them, that right yested in the person to whom that settlement gave it; and was divested out of the other party in case he had a right to it before that ■time. If an agreement is entered into upon a supposition of a doubtful right, it is binding. The compromise of a doubtful right is binding. (1 *P.*Wms. *727.*1 *Atk.*10. 2 *Bl.*448.) If either party should be imposed upon by the fraudulent conduct of the other, the case. wrould be otherwise; such agreement might be set aside for fraud. But as that is not the case here, I think the rule for a row trial should be made absolute.

And of this opinion waa the rest of the Court.

.TdlGMENT REVERSE!}.