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The question to be decided is one of fact, and the decision depends, in part, on the veracity or accuracy of recollection of the managing agents of the litigants. The evidence for the respondents (testimony of the president of the respondent company) is that the agreement to wipe out the disputed claims on both sides was clear and unmistakable, and that, acting on the faith of that agreement, the charge for demurrage (the claim for damages having been allowed by libelants) was placed to profit and loss on the books of the respondents. The libelants' managing agent. Mr. Valentine, with whom it is alleged the agreement was made, directly and positively denies all knowledge of it. Here, then, is a flat contradiction between the only two witnesses who testify to the making of the agreement; and in such a case the only recourse is to the custom and practice of transacting business between the parties, and to such acts and admissions of their agents as may throw any light on the subject. It is in proof that after the alleged agreement the libelant company gave credit as before, and that the charge of $15, the balance of the sum charged for towing the Dayton, disappeared from the bills rendered to the respondents. It is also proved that, on the 20th of January, 1888, Mr. Hagadorn, the accredited collector for the libelant company, gave the respondents a receipt for $329, "to balance acc't in full up to date;" and, although an ordinary receipt of this kind is not always conclusive evidence of the payment of all demands, if given under a mistake, or in ignorance of material facts, yet it is in testimony that Mr. Hagadorn was asked, at the time of signing this receipt, if the amount included all demands, and he replied that it did. These circumstances certainly give color to the statement that the agreement to cancel was made. They also create too much doubt of the right of the libelants to recover, to permit of a decree being made in their favor. The libel must therefore be dismissed.

END OF VOLUME 88.

L50523

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