Fox v. Tyler

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. In all contracts many things are left to implication. It was necessarily implied in the contract quoted that Pox would furnish the list of his creditors. He alone knew who his creditors were. It is equally obvious that when the contract speaks of “all creditors” it means all mercantile creditors, and does not refer to or include the little bills owing to the butcher, baker, and grocer for current supplies for his table. In Kauffman v. Raeder (at the present term) 108 Fed. 171, Judge Sanborn., speaking for the court, said: “The situation of the parties when the contract was made, its subject-matter, and the purpose of its execution are material to determine the intention of the parties, and the meaning of the terms they used, and that, when these are ascertained, they must prevail over the dry words of the stipulations.” When the subject-matter of this contract is considered, and the relation of the parties, it is clear that the propositions we have stated are applicable to this case. Pox did furnish to those of his creditors with whom-he entered into this arrangement a list of his mercantile creditors. There is no contention but what the assent of all these creditors except two was obtained before the defendants executed •their notes, and they knew when they executed and delivered their notes and canceled the deed of assignment and took possession of the goods that these two creditors had not been heard from. By their action they necessarily assented to the suggestion contained in Mr. Miller’s letter to Mr. Hawk and in his letter to P. M. Pox, namely, that, if these two • creditors “refused to come into the agreement, these two small accounts could be paid off by you [Pox] or the creditors if it is found to be absolutely necessary to do so.” When the defendants, with full knowledge of these suggestions, executed and delivered their notes, canceled the deed of assignment, and took possession of the goods, they must be held to have accepted the suggestion contained in the letters, and to have modified their written agreement accordingly. Pox was anxious to have the stock of goods restored to him, but the creditors would not consent to a cancellation of the deed of assignment and the restoration of the goods until the notes mentioned in the contract had been executed and delivered. The assent of the creditors to the cancellation of the deed of assignment, which secured to them the value of the goods, and the restoration of the goods to Pox, was ample consideration for Pox.waiving the assent of two of his small creditors to the extension. The answer does not specify the name or the amount of the debt of a single creditor who did not assent to the extension, nor does it aver that any creditor did not in fact grant the extension, or that any creditor demanded payment of his debt, or sued or threatened to sue therefor, before the expiration of the extension agreed upon, or that [261] the defendants were in any manner damnified by the failure of any creditor to agree to the extension, nor do they prove any of these things. Manifestly, such an answer sets up no defense. Moreover, the defendants having, with full knowledge of all the facts as to what creditors had assented to the extension, executed and delivered their notes and demanded and accepted all the benefits which were to accrue to themselves under the contract, namely, a cancellation of the deed of assignment and the possession of the stock of goods, which they thereafter sold, and appropriated to their own use, they are clearly estopped from setting up the attempted defense. Upon the record before this court the defense has no foundation in law or fact, and the judgment of the United States court of appeals for the Indian Territory and the judgment of the United States court for the Southern district of the Indian Territory are severally affirmed.