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is no hardship in requiring the bailor to give notice of the loss if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible to ascertain the actual facts. For these reasons such limitations have been held valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers.

Policies of fire insurance, it is well known, usually contain stipulations that the insured shall give notice of a loss, and furnish proofs thereof within a brief period after the fire; and it is undoubted that if such notice and proofs have not been given in the time designated or have not been waived, the insurers are not liable. Such conditions have always been considered reasonable, because they give the insurers an opportunity of inquiring into the circumstances and amount of the loss, at a time when inquiry may be of service. And still more, conditions in policies of fire insurance that no action shall be brought for the recovery of a loss unless it shall be commenced within a specified time, less than the statutory period of limitations, are enforced, as not against any legal policy. See Riddlesbarger v. Ins. Co., 7 Wall., 386, 19 L. ed., 257, and the numerous cases therein cited.

Telegraph companies, though not common 270*] carriers, are *engaged in a business that is in its nature almost if not quite as important to the public as is that of carriers. Like common carriers they cannot contract with their employers for exemption from liability for the consequences of their own negligence. But they may by such contracts, or by their rules and regulations brought to the knowledge of their employers, limit the measure of their responsibility to a reasonable extent. Whether their rules are reasonable or unreasonable must be determined with reference to public policy, precisely as in the case of a carrier. And in a case where one of the conditions of a telegraph company, printed in their blank forms, was that the company would not be liable for damages in any case where the claim was not presented in writing within sixty days after sending the message, it was ruled that the condition was binding on an employer of the company who sent his message on the printed form. Wolf v. Tel. Co., 62 Pa., 83. The condition printed in the form was considered a reasonable one, and it was held that the employer must make claim according to the condition, before he could maintain an action. Exactly the same doctrine was asserted in Young v. Tel. Co., 34 N. Y. Sup. Ct., 390.

In Lewis v. R. Co., 5 Hurlst. & N., 867, which was an action against the company as common carriers, the court sustained as reasonable stipulations in a bill of lading, that "No claim for deficiency, damage or detention would be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within seven days from the time they should have been delivered." Under the last clause of this condition the onus was imposed upon the shipper of ascertaining whether the goods had been delivered at the time they should have

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been, and in case they had not, of making his claim within seven days thereafter. In the case we have now in hand the agreement pleaded allowed ninety days from the delivery of the parcel to the *Company, within which [*271 the claim might be made, and no claim was made until four years thereafter. Possibly such a condition might be regarded as unreasonable, if an insufficient time were allowed for the shipper to learn whether the carrier's contract had been performed. But that cannot be claimed here. The parcel was received at Jackson, Tennessee, for delivery at New Orleans. The transit required only about one day. We think, therefore, the limitation of the defendants' common law liability to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sufficient defense to the action.

We have been referred to one case which seems to intimate, and perhaps should be regarded as deciding that a stipulation somewhat like that pleaded here is insufficient to protect the carrier. It is The Exp. Co. v. Caperton, 44 Ala., 101. There the receipts for the goods contained a provision that there should be no liability for any loss unless the claim therefor should be made in writing, at the office of the company at Stevenson, within thirty days from the date of the receipt, in a statement to which the receipt should be annexed. The receipt was signed by the agent of the company alone. It will be observed that it was a much more onerous requirement of the shipper than that made in the present case, and more than was necessary to give notice of the loss to the carrier. The court, after remarking that a carrier cannot avoid his responsibility by any mere general notice, nor contract for exemption from liability, for his negligence or that of his servants, added that he could not be allowed to make a Statute of Limitations so short as to be capable of becoming a means of fraud; that it was the duty of the "defendant to deliver the package to the consignee, and that it was more than unreasonable to allow it to appropriate the property of another by a failure to perform a duty, and that, too, under the protection of a writing signed only by its agent, the assent to which by the other party was only proven by his acceptance of the paper." *This case [*272 is a very unsatisfactory one. It appears to have regarded the stipulation as a Statute of Limitations, which it clearly was not, and it leaves us in doubt whether the decision was not rested on the ground that there was no sufficient evidence of a contract. The case cited from 36 Ga., 532, has no relation to the question before us. It has reference to the inquiry, what is sufficient proof of an agreement between the shipper and the carrier; an inquiry that does not arise in the present case, for the demurrer admits an express agreement.

Our conclusion, then, founded upon the analogous decision of the courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable onc, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity and care as they would have been required to exercise if no such agree

ment had been made. All that the stipulation | sented your letter of credit for $10,000 of 13th, required was that the shipper, in case the pack at thirty days. Permit me to inquire, in case age was lost or damaged, should assert his claim his drafts for $10,000 or less on Talmadge are in season to enable the defendants to ascertain paid, does your letter mean that we may take the facts; in other words, that he should assert his draft again up to the same amt., and so on it within ninety days. It follows that the Cir- for your limit of thirty days? That is to say, cuit Court erred in sustaining the plaintiff's do you guarantee us for thirty days on Freddemurrer to the plea. erick's draft on Talmadge, for $10,000. Yours, Resp'y,

The second assignment of error we need not consider. If it is one that can properly be made, which is at least doubtful, it is unimportant in view of our judgment upon the first. The judgment of the Circuit Court is reversed. and the cause is remanded for further proceed-WM. L. HAMMER, ings, in conformity with this opinion.

THE FIRST NATIONAL BANK OF DECA-
TUR, ILLINOIS, Plff. in Err.,

v.

THE HOME SAVINGS BANK of Saint Louis,
Missouri.

(See S. C., "Decatur Bank v. St. Louis Bank," 21 Wall., 294-302.)

Letter of credit, construction of—material error.

1. A letter of credit guarantying drafts on shipments of cattle, includes drafts on shipments of hogs.

H. C. PIERCE, Cash." (Response).

"Capital paid in, $100,000.
First National Bank of Decatur, Illinois.
J. H. LIVINGSTON,
Cash'r.

President.

DECATUR, Ills., 9, 21, 1869. H. C. Pierce, Cash., St. Louis, Mo.

DEAR SIR: Your favor of the 18th is received. Yes, we guarantee you on Frederick's draft on Talmadge for $10,000 for thirty days, from Sept. 13, 1869. Yours respectfully, J. H. LIVINGSTON." (First Extension.)

"DECATUR, Ill., 10, 20, 1869. H. C. Pierce, Esq., Cash., St. Louis, Mo. DEAR SIR: The guarantee given you for Mr. Frederick, please consider extended for thirty days from expiration.

Yours, &c.,

J. H. LIVINGSTON, Cr.” (Second Extension.)

"DECATUR, Ill., 11, 22, 1869.

2. To warrant the reversal of a judgment, there *H. C. Pierce, Esq., Cash. Home Savings [*296 must not only be error found in the record, but the error must be such as may have worked injury to the party complaining.

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IN ERROR to the Circuit Court of the United States for the Southern District of Illinois. Suit was brought in the court below by the defendant in error, to recover for money alleged to have been paid by said plaintiff as accomodation indorser of certain drafts for one Frederick. Plaintiff alleged that said indorsements were made in reliance upon a certain letter of credit from the defendant. The whole correspondence was as follows:

(Original Letter of Credit.)

President.

"Capital paid in, $100,000.
First National Bank of Decatur, Illinois.
WM. L. HAMMER, J. H. LIVINGSTON,
Cashier.
DECATUR, ILL'S, 9, 13, 1869.
H. C. Pierce, Esq., Cash'r, St. Louis, Mo.
SIR: We beg herewith to accredit with you
P. E. Frederick, Esq., whose drafts on ship-
295*] ments of cattle to J. S. Talmadge & *Co..
Ch'go. are herewith guaranteed to the amt. of
$10,000 for thirty days from date.

Yours respectfully,
J. H. LIVINGSTON."
(Letter of Inquiry).

"JOSEPH HODGMAN, HENRY S. PARKER,
Vice-President.

President.

H. C. PIERCE, Cashier.

HOME SAVINGS BANK OF ST. Louis.

ST. LOUIS, Sept. 18th, 1869.

J. H. Livingston, Esq., Cashier:

DEAR SIB: Mr. Frederick has to-day pre

Bk., St. Louis, Mo.
SIR:
The letter of credit given you by Mr.
Frederick is hereby extended for thirty days
from expiration last date.

Respectfully,

J. H. LIVINGSTON, Cr." The plaintiff declared upon the response dated Sep. 21, 1869, and the extensions dated Oct. 20 and Nov. 22 of the same year. The court instructed the jury that the contract was contained in these letters as claimed by plaintiff, and not in the original letter, and that the drafts guarantied were, therefore, not limited to those drawn upon shipments of cattle.

Judgment having been given for the plaintiff, the defendant sued out this writ of error: The case is further stated by the court:

Mr. John B. Hawley, for plaintiff in error: The letter of September 21, in reply to the letter of September 18, says: "Yes, we guarantee you for thirty days from September 13, 1869," showing that the original letter of credit of that date, was referred to and was to stand, and that the only effect of the last named letter was simply to permit the issuance of new drafts within the thirty days from September 13, provided previous drafts were paid.

The defendant below authorized the drawing of drafts upon shipments of cattle. The drafts issued were in fact upon shipments of hogs.

The plaintiff in error having never in any way abandoned the original letter of credit, and the defendant in error having failed to comply with its provisions, the plaintiff in error now respectfully insists that in right and justice it is in no way liable thereon.

Mr. Fred. W. Jones, for defendant in

error:

Appellee, in paying Frederick's drafts upon

Talmadge, was simply and only extending an act of accommodation to appellant, upon appellant's request, through Frederick, who must be considered the agent of the appellant to transact the business and receive the accommodation. The mere payment of the money by the appellce on the drafts raised a debt against the appellant.

The plaintiff in error admits the execution of the drafts and the payment of the money, but insists there is no right of action against it, because the drafts were drawn on shipments of "hogs" instead of cattle. It is not pretended that any injury accrued, to it on this account; nor that its security was lessened; nor that there was any want of good faith on the part of the St. Louis Bank or Frederick in the transacsented to be bound if cattle were shipped, and this not being done, no liability attaches to it.

1 Bell, Com., 5th ed, 371, cited in Bouvier, Dic., tit. "Letters of Credit;" Lawrason v. Mation; but the point made is, that it only conson, 3 Cranch, 492.

"Cattle" is defined by Webster as, "beasts or quadrupeds in general, serving for tillage or other labor, and for food for man."

Worcester defines the word as "A collective name for domestic quadrupeds including the bovine tribe; also horses, asses, mules, sheep, goats and swine, but especially applied to bulls, oxen, cows and their young."

This defense, technical though it be, is sufficient to defeat the action if the condition of the guaranty was not observed, and this fact renders necessary a construction of the instrument. Like all other contracts it must receive the construction which is most probable and natural under the circumstances, so as to attain the object which the parties to it had in contemplation in making it. Frederick was engaged in buying and shipping stock in St. Louis during the fall and winter of 1869, and the presumption is, in the absence of any evidence on the point, that he resided in Decatur, where the plaintiff in error had its place of business. At any rate, he was unknown in St. Louis, without either money or credit and, as he could not carry on his business without money, it was necessary that he should be accredited to some *responsible banking house in that city. [*299 This was done through the letter of credit of 13th September. The Bank to which this letter was addressed, doubtless thought its correspondent trusted in some degree to the pecun

But the word "cattle" has received judicial construction and definition and is held to include not only "pigs" but horses, mares, colts, sheep and even "asses," and this, in criminal cases where a strictness of construction in favor of life and liberty invariably prevails. The Statute of 22 and 23 Car. 2, ch. 7, prohibited the maiming or killing any "horses, sheep or other cattle." The Statute of 9 Geo. I., ch. 22, which was held as extending and enlarging the Statute of 22 Car. 2, used the word "cattle" only. Yet in Rex v. Chapple, Russ & Ry., Cr. Cas., 77, upon a conviction for poisoning "pigs" where the point was raised, whether pigs were cattle within the Act, judges held that they were; and in Rex v. Whitney, Mood. Cr. Cas., 3, the point was raised whether asses were "cat-iary responsibility of Frederick, but it had no tle" within the Act. and the judges (eleven being present) held that they were.

In Paty's case, 2 W. Bl., 721, "horses" were held to be "cattle" within the meaning of the Act" (vide 1 Leach Cr. Cas., 72); and so were "geldings" in Rex v. Mott, 2 East, Pl. Cra., 1074. The words "of cattle" were words of description only, and formed no part of the guaranty, inasmuch as neither in its letter of Sep. 21, 1869 (which is the real guaranty sued upon), nor in its subsequent letter, does the appellant refer to or mention cattle, or any other property for which the drafts were to be made, nor was it important to either party for what the drafts were given.

right to suppose that the letter of credit was given solely on this account. On the contrary, the letter is based on the idea that shipments of stock would protect the drafts. If Frederick was responsible, still the Decatur Bank did not trust to this alone, but relied on the security which was to accompany the drafts. This it had a right to do, and its conduct was very natural under the circumstances. Indeed, the business in which Frederick was engaged is usually conducted in this manner. The Decatur Bank doubtless believed and acted on the belief that the stock would sell for enough to pay the drafts, and if it did not, the loss would be inconsiderable and such as Frederick could readily meet. It now seeks to escape liability

Mr. Justice Davis delivered the opinion of not that stock sufficient to secure the drafts the court:

The basis of this suit is the letter of credit of 13th September, 1859, addressed by the cashier of the plaintiff in error to the cashier of the defendant in error, in the following terms: "We beg to accredit with you P. E. Frederick, Esq., whose drafts on shipments of cattle to J. T. Talmadge & Co., Chicago, are herewith guaranteed to the amount of $10,000, for thirty days from date." The subsequent correspondence, on any rational interpretation of it, did not have the effect to change the terms of this the original letter, nor was it intended to do so except in two particulars, which are not the subject of controversy.

Two drafts drawn by Frederick on Talmadge & Co., which were paid to him by the defendant in error, were dishonored, and this suit is brought to hold the plaintiff in error liable on its letter of guaranty.

was not shinned, but that it was a different sort of stock from that named in its letter. It is fair to presume that an investment in hogs yielded as good a return as an investment in cattle, and if the consignee in Chicago, had not failed, that no trouble would have arisen. As this consignee, named by it, and with whom the Saint Louis Bank had no concern, did fail, it seeks to throw the loss on the Saint Louis Bank because it interpreted the letter to embrace shipments of hogs as well as neat cattle. The question then arises: was this interpretation correct?

That stock of some kind formed part of the guaranty is quite plain, but is the word "cattle" in this connection to be confined to neat cattle alone, that is, cattle of the bovine genus? It is often so applied. but it is "also a collective name for domestic quadrupeds generally, including not only the bovine tribe, but horses.

asses, mules, sheep, goats and swine." Worcester, Dic., Cattle. In its limited sense it is used to designate the different varieties of horned 300*] animals, but it is also frequently *used with a broader signification, as embracing animals in general which serve as food for man. In England, even in a criminal case, where there is a greater strictness of construction than in a civil controversy, pigs were held to be included within the words "any cattle." Rex v. Chapple, Russ. & R., C. C., 77. And in other cases in that country involving life and liberty the word has been construed so as to embrace animals not used for food. Rer v. Whitney, Moody, C. C., vol. 1, p. 3; Rex v. Paty, 2 W. Bl., 721; Rex v. Mott, 2 East, P. C., 1074-1076.

Did the plaintiff in error use the word in its narrow and restricted meaning or in its more enlarged and general sense? In other words, did it intend to restrict Frederick to the dealing in horned animals alone, and so confine the defendant in error to drafts based on this kind of stock? There was no apparent motive for doing so. Clearly, security was the object to be attained, and this was better attained by leaving Frederick unresricted in the choice of animals to send forward to market, provided they were of the kind generally used for food. It is well known that the market varies at the Chicago cattle yards. At certain times hogs have a readier sale and bring better prices than other kinds of stock, and at other times horned animals alone command the attention of buyers. Every prudent dealer in stock informs himself of the state of the market before purchasing, and the means of doing this are greatly multiplied in later years.

This construction of the letter of credit disposes of the case and affirms the judgment.

It is true, the judge of the circuit court instructed the jury that the letter of September 21, which leaves out the terms "on shipments of cattle," constituted the contract of guaranty between the plaintiff and defendant; but the result would have been the same if he had charged the jury, as we are of the opinion that he should have done, that the rights of the parties were to be determined by the terms of the original letter of credit of the 13th September.

In either aspect of the case the judgment must have been for the plaintiff below, and to warrant the reversal of a judgment there must be not only error found in the record, but the error must be such as may have worked injury to the party complaining. Brobst v. Brock, 10 Wall., 519, 19 L. ed., 1002.

The bill of exceptions contains all the evidence in the case, and though the jury may have found their verdict on a wrong theory of the case, yet as the court can see that the verdict was correct, the plaintiff in error is not harmed by the misdirection of the judge. The result is right, although the manner of reaching it may have been wrong.

*It was urged at the bar that national [*302 banks are not authorized to issue letters of credit, and if so, that the action cannot be sustained. But the record does not raise the question, and it cannot, therefore, be considered. It is true a plea was interposed which was doubtless meant to raise it, on which issue to the country was tendered, but for aught that it appears it was abandoned.

No evidence was offered under it, but if this were not necessary the attention of the court at least should have been called to it, and proper instructions asked. If refused, error could have been assigned, and the point would then have been properly before the court for decision.

Nothing of the kind was done, and it is too late to raise the question now.

The judgment of the Circuit Court is affirmed.

That Frederick pursued this course, and bought and sold according to the indications of the Chicago market, would seem clear from the evidence, for he says he was engaged in buying and shipping stock in Saint Louis during the fall and winter of 1869. If his operations, except in the single instance on which the drafts in suit are predicated, were confined to horned stock, why did he not say so? If true, it would have strengthened the defense, because it would have shown that all the dealings between Frederick and the defendant in error, with a single exception, were based on shipments of THE ROGERS LOCOMOTIVE AND MAstock of the bovine genus. These dealings were 301*] continued *through a period of three months by the renewals of the guaranty, and could not have been infrequent. It would seem, therefore, that the parties in Saint Louis dealt with each other on the understanding that the guaranty embraced the different kinds of stock which are used for food, and usually sent for that purpose to the Chicago market.

They had the right to give this construction to it, and there is nothing in the evidence tending to show that the plaintiff in error understood it differently, except that the word "cattle," as often used, does not include hogs. But it would be a narrow rule to hold that this word was used in its restricted sense, in the absence of any evidence, other than inferential, on the subject. Especially is this so when the word is susceptible of a different meaning, and important transactions have been based on the

idea that it was employed in its enlarged and

not in its restricted sense.

CHINE WORKS, Appt.,

v.

THOMAS E. HELM.

Specific performance, proofs necessary in action for-case dismissed on the evidence.

1. To justify a decree for the specific performance of a parol contract for the sale of real estate, the contract sought to be enforced, and its performance on the part of the vendee, must be clearly proved.

2. The agreed price, a description of the real estate agreed to be sold, and payment of such price must be shown.

3. Held, in this case, on the facts, that the

proofs showed the identity of the real estate which
was the subject of the contract, but did not show
the other facts necessary to a decree of specific per-
formance, and that the decree dismissing the bill
should be affirmed.
[No. 134.]

Decided Feb. 1, 1875.

Argued Jan. 12, 1875.
APPEAL from the Circuit Court of the United

States for the Southern District of Missis

sippi.

The case is fully stated by the court.
Mr. P. Phillips, for appellant.
Messrs. R. M. Corwine and Quinton Cor- tate, the contract sought to be enforced and its

To justify a decree for the specific performance of a parol contract for the sale of real es

wine, for appellee.

Mr. Justice Hunt delivered the opinion of the court:

The complainants, who are also the appellants, filed their bill to enforce the performance of a patrol contract for the sale of a house and lot in the City of Jackson.

The alleged contract was made with the Mississippi Manufacturing Company, which has since gone into bankruptcy, and all its rights, by means of the mortgage hereafter to be mentioned, and a conveyance from its assignee, are alleged to have become vested in the complain

ants.

The bill alleges that, in the year 1866, Helm was the owner of a certain lot in Jackson, on which was a brick storehouse; that the house and lot were purchased of Helm by the Manufacturing Company for the price of $12,000, which sum was to be paid to Helm by one hundred and fifty shares of the stock of said Company, for which a certificate was to be issued to him, and on the issuance thereof, Helm was to make conveyance of the said lot; that the contract was not in writing, but afterwards, on the 4th of March, 1867, by a letter in writing, Helm acknowledged the receipt of the one hundred and fifty shares, and acknowledged that the lot was to be conveyed by deed to the Company (this was contained in exhibit A, which is set forth at length); that some work was needed to be done upon said house, which Helm agreed to have done for the Company and for which the Company agreed to pay; that on June, 1867, Helm made out an account of the expenditures for said work amounting to $919.35, among the items of which was a receipt for taxes on said house and lot of $45, on which was written, by direction of Helm, a receipt of the same for the Mississippi Manufacturing Company. It is alleged that by reason of these transactions, Helm is estopped from denying that the lot is in equity the property of the manufacturing company. It is further alleged that in 1867 the company was put in possession of said lot by Helm; that he acted as their agent in renting the same on their account and paying the rents to them; that Helm now repudiates the sale, alleging that the same was verbal only and not binding; whereas, it is alleged that the contract had been acknowledged by Helm in writing; that it had been fully

performed on the part of the Company by pay ing the purchase money, and partly performed by Helm by giving possession to the Company, making improvements thereon on their account, and receiving payment therefor from them.

It is further alleged that in 1869, the Company being indebted to the complainants in a large sum, executed to them a mortgage of the premises before referred to; that the Company became bankrupt, and for a valuable consideration the assignee sold and conveyed to the complainants all his right and interest in the prop

erty.

The allegations of the bill respecting the terms of the contract and the alleged performance, are denied in the answer, and a certain other contract, quite different from the one set up in the bill, is stated to have constituted the understanding between the parties.

performance on the part of the vendee, must be clearly proved. Omitting the consideration of the question whether possession by the vendee in such a case is a controlling circumstance; omitting also the consideration of the point whether the terms of the alleged contract can be established otherwise than by writing in some form or of some character, we think it cannot be questioned by anyone that all the material points of the alleged contract must be proved by some competent evidence, and the substantial performance of the conditions undertaken by the vendee must be proved in like manner.

It appears, from what has already been stated, that the complainants base their case upon an alleged contract, by which Helm agreed to sell to the Manufacturing Company his house and store lot in Jackson, for the sum of $12,000, and that Helm agreed to receive the payment of that sum by a certificate for one hundred and fifty shares of the capital stock of their Company, which certificate, it is alleged, was received and accepted by Helm in satisfaction of that sum.

This involves the specification following, to

wit:

1. The agreed price of $12,000 for the house and lot.

2. A description of the particular house and lot so agreed to be sold.

3. Helm's agreement to accept a certificate of one hundred and fifty shares of the capital stock of the Manufacturing Company in payment of that amount.

4. That he did so receive and accept it.

The answer is at least to be construed as putting in issue each of these allegations, and requiring that proof of them be made by the complainants. Taking the evidence and the admissions of the pleadings into account, we may hold that the identity of the house, which is the subject of the contract, is sufficiently established. On the other points there is a failure of proof.

The an

The complainants allege that the price of the house was $12,000, pure and simple. swer, after denying this statement, alleges that, so far as there was any understanding, it was to this effect: that Helm was to take, not one hundred and fifty shares, but three hundred shares of the manufacturing stock; not at par, but at an agreed value per share; that the Comsaid building at Jackson, with a capital of $100,pany agreed to establish a banking house in 000, and that Helm should be the permanent cashier thereof, at a salary of $2,000 a year; that in part payment for the three hundred shares, Helm was to fit up the house in question for a banking house, and convey it to the Company for that purpose, at an estimate to be ascertained by the parties, and that the balance in payment of the stock should be paid by him in money.

shares of stock is different from an agreement That an agreement to take three hundred to take one hundred and fifty shares; that an agreement to receive one hundred and fifty shares in payment for a banking house, is dif ferent from an agreement to receive three hundred shares at an agreed value in, part payment of the house, to be fitted up by the vendor for

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