The opinion of the court was delivered by
Royce, J.In this case exceptions were taken by both parties at the trial. I shall begin with the question reserved by the plaintiff, as to the admissibility of evidence to prove the value of the property; because this involves a construction of the agreement of Nov. 19, 1839, and the views entertained by the court upon this part of the case will be found to dispose of several questions which were saved by the defendant. In that agreement there was an express and positive covenant on the part of the plaintiff, ( which it seems he duly performed,) to discontinue his action against Ingraham,— and a covenant equally express and positive on the part of the defendant, to pay the value of the property attached, as well as to make certain other payments for costs, trouble and expense. But it is urged that those covenants were dependent upon the appraisal *695to be made of the^properly;— that the appraisal could be regarded in no other light than as a matter submitted to arbitrators, whose powers, as such, were legally subject to the right of revocation ; — and consequently that the defendant, by revoking those powers, or preventing the appraisal, defeated his covenant to pay for the property. We think, however, that the agreement should receive a different and more just construction. The appraisers were merely to determine the value of the property. They were not authorized to find any sum due from one party to the other, nor to direct any payment to be made, or other act to be done on either side. And, although their decision might have been conclusive upon the single question of value, it could not have possessed the ordinary properties of an award, as it could never have become the substantive ground of any suit or action. The stipulation relating to an appraisal is more properly to be treated as an incidental provision in the agreement, designed to facilitate its execution on the part of the defendant. And in this view it might even be doubted whether the obligation to procure an appraisal to be made did not rest wholly upon the defendant. At most there was but a mutual undertaking to effect that object. And since the plaintiff endeavored faithfully to procure the appraisal, the defendant should derive no benefit from having defeated it. He can claim to be in no better condition than if the appraisal had been, waived by mutual consent. In that case his covenant to pay the value of the property would remain in force, as it now does. And the mode originally contemplated for ascertaining the value having become impracticable without the plaintiff’s fault, he should be allowed to resort to the ordinary mode. It follows that the evidence offered by the plaintiff to prove the value of the properly attached was incorrectly excluded.
The view thus taken of the agreement furnishes an answer to the defendant’s motion to dismiss, founded on the alleged want of original jurisdiction in the county court. It farther shows that neither the adjournment- by the appraisers to a day beyond the time limited by the articles of agreement, nor the want of a seal to the revocation interposed by the defendant, should be permitted to prejudice the plaintiff’s right. The adjournment was the act of the appraisers done at the defendant’s "request, whilst the revocation was his sole act. On his part they would seem to have' been alike intended to defeat the appraisal, — a purpose which was finally effected. But as *696that result was not imputable to any act, neglect, or consent of the plaintiff, his remedy upon the agreement was not thereby abridged.
An objection was taken to the agreement, when offered in evidence, on the ground of variance from the declaration in reference to the consideration of the defendant’s covenant to make the several payments. The plaintiff’s agreement concerning the appraisal was claimed to have made a part of the consideration of that covenant. It is certain, however, that there is no literal variance, since the declaration has, in this particular, adopted the very words of the agreement. The plaintiff having therein bound himself to discontinue his action, the defendant, “in consideration thereof, covenants” &c. Neither do we think there is any intrinsic or real variance, inasmuch as the succeeding provision, for having the property appraised, was doubtless understood as relating merely to the performance of the covenant, and not as forming any part of its consideration. It may be added that the defendant is estopped by his deed from alleging any different consideration from the one therein stated.
A single point remains to be considered. The question arising under the defendant’s fourth plea was, whether the written assignment from George and Allen Marshall to the plaintiff conveyed, or purported to convey, the same property for which the plaintiff brought his action against Ingraham. And the slightest inspection of that instrument is sufficient to show that the question was rightly determined in the negative. . That assignment was only of a certain book of accounts, and the sums of money due thereon. It refers, indeed, to a transfer of the other property to the plaintiff, as having been made before the attachment by Ingraham. It also professes to be part of the same transaction by which that transfer was made. But the writing explains this latter declaration simply to mean, that both the transfer and assignment were made in execution of the same pre-existing contract, or upon the same consideration. It is impossible so to construe the assignment, as to make it operate to pass any interest in the property before transferred, or to render the validity of the previous transfer in any measure dependent upon it.
The conclusion is, that the rejection .of evidence to show the value of the property furnishes the only sufficient reason for reversing the judgment below. On that ground the judgment is reversed.