Opinion of the Court. The Court consider the litigation of the suit, in favor of Evans against the present plaintiff, in the Supreme Court of the United States, as stated in the agreement declared upon, to be a condition precedent. The court are to compel the performance of contracts, according to the agreement of the parties. In this case, the defendant’s promise was founded on the consideration of contemplated litigation of the suit, in the Supreme Court, this consideration, as agreed upon by the parties, was the motive to the promise, and to compel the defendant to fulfil a contract upon a different consideration, would bind him to a contract, to which he never assented : No agreement was made or required to contribute money on account of the expences in the Circuit Court.
Judgment, that declaration is insufficient.
Williams for plaintiff, Chipman for defendant.