It is entirely clear from the correspondence and the other proofs that at the time the agreement of December 5, 1903, was entered into there was a substantial and bona fide controversy between the. parties in which the defendants’ position was that they never ordered the plaintiff to ship to the Liverpool concern any lumber other than the pine squares, and consequently they were not liable to the plaintiff for the other lumber ; that that concern had ordered such other lumber and were alone liable to the plaintiff for it. The position of the defendants in this respect was clearly supported by the plaintiff’s letters and his testimony on the-trial to the contrary was entitled to little weight. The,position of the plaintiff, on the other hand, was that the defendants had Ordered, and were liable for, all the lumber. There were also minor disputes between them with reference to the claimed deduction from the purchase price by the Liverpool concern because of some differences in measurements and dissatisfaction as to quality.
This being the situation, the parties entered into the agreement .of December 5, 1903. It may have been an unwise one for the plaintiff to enter into. Nevertheless it appears to us to have been supported by a sufficient consideration on both sides, because of its mutuality. By it the defendants stated their understanding with reference to the five cars that had already been shipped and the two which had been billed by the steamship company and then said that “ for the remaining three cars that are now in Boston we will settle with you at $28 for the Squares and $18 for the lumber F. O. B. Boston, as we agree to take the lumber as'well as the *244Squares at. this price. We have already paid'you $1,500.00 on account and the balance we will pay just as soon as we receive the-final settlement.” The defendants had disputed their liability for any • of the lumber other than the squares,, and here was an agreement on their part' to take and pay for such other lumber on- three -cars .in-addition to that for which they admitted liability. The plaintiff claimed that the lumber had been sold F. O. B. at the place where the Cars started. By this agreement the terms were stated to be F. O. B. at Boston. Pursuant to the agreement the defendants paid all the freight on the ten. cars, amounting to $468.64. They also paid demurrage amounting to $220.70, both of which amounts' they were entitled to credit for. ■ The prpof is- clear that the term- “ final settlement,” used in the agreement, had reference to- the-settlement, óf the bankrupt estate of the Liverpool concern in which both parties were interested because of the claims which had been proven in the defendants’ names. The plaintiff signed this indorsement upon the agreement “ I accept the above and such settlement will be satisfactory to me and in full.”' ' .
By that he must be bound and it furbishes a complete defense to this action, as there is no proof that there has been a final settlement of the . bankrupt estate. ■ . ■
The learned referee was in error in giving judgment for the plaintiff in disregard of his agreement for - the compromise Of liis' claim: - - '
The judgment' should be reversed on' the law and on the facts, the referee discharged and a new trial granted, with costs to the appellants to abide the event. .
All concurred. '
Judgment reversed on law and facts, referee discharged, and new-trial granted, with -costs to appellants to abide event.