Appeal from the District Court, Twelfth Judicial District, City and County of Ban Francisco.

The complaint in this action was as follows; “John A. Magee and Arthur W. Moore, the plaintiffs in the above entitled action, complaining of Francis X. Hast, the defendant in the said action, allege: That said plaintiffs are partners in business, under the firm name and style of Ma-gee, Moore & Go. That on the 17th day of November, 1871, the said defendant was, and still is, indebted to the said plaintiffs in the sum of $1,247 50 gold coin, on an account for goods, wares and merchandise, consisting of leather and shoe manufacturers’ goods sold and delivered by the said plaintiffs to the said defendant, at his special instance and request, at the city and county of San Francisco.

That no part of said sum has been paid.

That there is now due to the said plaintiffs thereon from the said defendant, the sum of $1,247 50 gold coin, with interest thereon from the 17th day of November, 1871, at the rate of-per cent, per-.

Wherefore, the said plaintiffs pray judgment against the said defendant for the sum of $1,247 50 gold coin together with interest thereon from the date last aforesaid, and costs of suit.”

The defendant answered, setting up an agreement in writing, made by the plaintiffs, to sign a release for the whole of the indebtedness on receipt of thirty per cent, thereof; and a tender of the thirty per cent., and its refusal by the plaintiffs.

The defendant, on the trial, introduced in evidence the following agreement with the signatures annexed, but excluding the condition annexed to the signature of Magee & Moore. The plaintiffs objected, and the Court sustained the objection. The defendant then offered the agreement in evidence, with the said condition, and it was read.

“ Know all men by these presents, That whereas, Francis Xavier East, trading and doing business in the city and county of San Francisco, is unable by reason of divers losses to pay and discharge his debts and liabilities in full; and, whereas, each of the names and firms undersigned, who are creditors of said F. X. East, have mutually agreed, one with the other and with the said F. X. East, to share a loss and make a settlement of our several claims, and thereby prevent a sale of the assets of said F. X. East, and allow said F. X. East to continue in business.

‘ ‘ Now, therefore, in consideration of the premises, we, the undersigned, covenant and agree, one with the other, that on the delivery to each of us of the promissory notes of said F. X. East for an amount equal to thirty (30) percentum of the amount due us severally, which said notes are made payable in gold coin of the United States, at thirty days from this date, and endorsed to our satisfaction, that we and each of us on demand, will execute and deliver to said F. X. East, a release under seal of all claims and demands which we, the undersigned, severally, and not jointly, ever had, or which each of us now has against the said F. X. East, by reason of any matter or thing up to the date of these presents. But said release shall contain a clause and covenant that if the said promissory notes be not paid at maturity that the release shall be void and of no effect, and that the said F. X. East pay all expenses incurred.

“In witness whereof, we have hereunto set our hands and seals the twenty-seventh day of November, 1871.

“In presence of ”-———

The defendant then introduced in evidence an acknowledgment, signed by a number of creditors, that they had received promissory notes, as provided in the composition agreement, for thirty per cent, of their demands, and releasing their debts if the notes were paid in thirty days. This acknowledgment and release was signed by the creditors (except Magee & Moore,) who signed the composition agreement, and by some other creditors. The defendant had creditors who resided in Philadelphia, but they did not execute either paper. There were some San Francisco creditors who did not sign the composition agreement, and there was evidence introduced by the plaintiffs, tending to show that some of the creditors were paid in full. The plaintiffs had, before the date of the composition agreement, signed an attachment bond as surety for the defendant in an attachment suit he had commenced against one Broderick. The defendant introduced testimony tending to show that the plaintiffs agreed to accept thirty cents on the dollar, if he would indemnify them against their liability on the attachment bond, and that he did thus indemnify them before they signed. The plaintiffs had judgment in the Court below and the defendant appealed.

The other facts are stated in the opinion,