
141 U.S. 564 (1891)
FIRE INSURANCE ASSOCIATION, LIMITED
v.
WICKHAM.
No. 59.
Supreme Court of United States.
Argued October 28, 1891.
Decided November 16, 1891.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.
*573 Mr. C.I. Walker for plaintiff in error.
Mr. F.H. Canfield and Mr. Joseph H. Choate for defendants in error.
*576 MR. JUSTICE BROWN delivered the opinion of the court.
As we held in this case on the motion to dismiss, (Fire Insurance Association v. Wickham, 128 U.S. 426,) that the second question was improperly certified and could not be answered, the only question now presented for decision is the first, namely: "On the facts stated in the foregoing record, was the parol testimony offered in evidence by the plaintiffs admissible to vary and contradict the certificate of January 19, Exhibit QQ, and the receipts and drafts hereinbefore set forth?"
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, 8 Wheat. 174, decided in 1823, to that of Seitz v. Brewers' Refrigerating Company, ante, 510, decided at the present term, that parol testimony is not admissible to vary, contradict, add *577 to or qualify the terms of a written instrument. The rule, however, is subject to numerous qualifications, as well established as the general principle itself, among which are that such testimony is admissible to show the circumstances under which the instrument was executed, or that it was in fact without consideration.
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 creditor may still sue and recover the residue. If there be a bona fide 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 the 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, 94 U.S. 53, 67: "Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration:" although it was subsequently held in Baird v. United States, 96 U.S. 430, 431, that if the debt be unliquidated and the amount uncertain, this rule does not apply. "In such cases the question is, whether the payment was in fact made and accepted in satisfaction." The authorities upon this point are numerous and decisive. Pinnel's Case, 5 Rep. 117; Fitch v. Sutton, 5 East, 230; Harriman v. Harriman, 12 Gray, 341, 343; Redfield v. Holland Ins. Co., 56 N.Y. 354; Ryan v. Ward, 48 N.Y. 204; American Bridge Co. v. Murphy, 13 Kansas, 35; White v. Jordan, *578 27 Maine, 370; Bailey v. Day, 26 Maine, 88; Weber v. Couch, 134 Mass. 26; Foakes v. Beer, 9 App. Cas. 605.
In this case there were two distinct and separate claims of similar amount, namely, $15,364.78, one of which was for the direct loss and damage to the property insured by the fire, and the other was for the incidental 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 companies who were present at the meeting in New York. That they intended and supposed they were making a settlement of the plaintiffs' entire claim against them is probably true. But, aside from the parol testimony given by Wickham of the conversation at the meeting, the admissibility of which is the question 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 not "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 letter 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 memorandum 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 of testimony are inconsistent *579 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 one 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 consideration 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 as 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 agreement 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 some 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 element 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 recognized 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. 110 Mass. 389. Now evidence of what took place at the meeting, if admissible for no other purpose, was competent as bearing upon the question whether the prepayment was mentioned or treated as an inducement or consideration for the release of the residue of the claim. It certainly *580 was not so stated in the defendant's plea, which set forth that the defendant "paid to said plaintiffs a valuable consideration, to wit, the sum of $1920.60, in full accord and satisfaction, etc., ... for losses and damages by fire, at the several times in said plaintiffs' declaration set forth, ... which valuable consideration or sum of money, so paid as aforesaid, was then and there accepted and received by said plaintiffs of and from said defendant in full payment, satisfaction, release and discharge of the said two policies of insurance, ... and in consideration of said money so paid and received as aforesaid said plaintiffs then and there released in writing the said defendant," etc. There is no mention here of the prepayment of this sum as a consideration for the release of the residue. The oral testimony upon this point was conflicting; the plaintiffs swearing that the committee stated that the companies were ready and willing to pay the cost of making repairs, and would waive any right they might have under the clause making the loss payable in sixty days from the time the proofs were furnished. There is no doubt that this right to delay payment was a stipulation which the insurer could waive at his option, Insurance Company v. Norton, 96 U.S. 234, 240, and if, as the plaintiffs stated, the insurance companies did exercise this option, and agree to waive their right to the sixty days, the prepayment cannot be regarded as a consideration to support the alleged compromise. It is a familiar doctrine that parol evidence is competent to show a want of consideration. 1 Greenl. Ev. secs. 284, 304.
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 not, cannot be the subject of review here.
(2) Aside from this, however, 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 creditor 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, actions 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 the 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., 4 Wash. C.C. 562; Payler v. Homersham, 4 M. & S. 423; Jackson v. Stackhouse, 1 Cowen, 122; Grumley v. Webb, 44 Missouri, 444; Price v. Treat, 29 Nebraska, 536; St. Louis, Wichita &c. Railroad v. Davis, 35 Kansas, 464.
The appraisement, the letter of Allen transmitting the proofs of 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 receipts.
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 claimed to par-take 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 policy 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 no defence; 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 settlement, 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.
MR. JUSTICE BRADLEY and MR. JUSTICE GRAY did not hear the argument nor take part in the decision of this case.
