The paper signed by the plaintiffs and bearing date on February 15, 1849, cannot be considered as constituting J. B. Hanson their agent. If Hanson could not induce the Benners to accede to the proposed terms of settlement, he could not be required to carry that agreement into effect. The plaintiffs could not have maintained any action *234against him upon. it. That paper is what it purports to be, an agreement or offer of the plaintiffs, to settle their suits against the Benners upon certain terms, and placed in the hands of Hanson, that he might avail himself of the benefit of it. It would become binding upon the plaintiffs upon an acceptance and performance by Hanson. He insists that there has been a performance. The money to be paid was tendered within the stipulated time. A paper signed by the defendant acknowledging the reception of one dollar “in full of all claims and demands of every description,” and stating that an entry of neither party was to be made in the plaintiffs’ action against John Benner and trustees with respect both to principal and trustees, and that a like entry was to be made in their action against himself, was also tendered. No other paper or proof appears to have been presented.
The plaintiffs, by their agreement, were entitled to have “ an obligation from the adverse parties to forbear any suit or trouble to us on account of proceedings against them.”
Trustees are parties to a suit, and were adverse parties to the plaintiffs in their suit against John Benner. If the parties defendant in that suit could recover costs against the plaintiffs, it would occasion trouble to them on account of those proceedings. No document or proof was presented to the plaintiffs showing, that those defendants, either principal or trustees, had agreed to an entry of neither party or to relinquish their claims to costs.
The defendant in this action and Hanson assumed to make such an agreement for them, but it does not appear that they had any authority whatever to do so. Nor does it appear, that the suit against John Benner and trustees, has ever been discontinued or adjusted in any other manner, or that the trustees have been discharged without costs, or that the plaintiffs are not liable to pay costs to them.
There does not therefore appear to have been a substantial compliance by Hanson with all the material terms offered by the plaintiffs.
It does appear, that they stated in the orders prepared for *235their attorneys, that the conditions of their agreement had been fulfilled. They must have done so under a misapprehension of their rights or from a willingness to waive a more strict performance, if that arrangement was perfected. Hanson declined it and their erroneous statement or waiver founded upon it fell with it. Being part of an arrangement never completed the plaintiffs cannot be bound by that declaration. The action is to stand for trial.
Wells, Howard and Hathaway, J. J., concurred. Rice, J., concurred in the result.