Jacob Gerrish, Administrator of Samuel French, versus Seth Sweetser.
A letter of attorney, irrevocable, to receive a sum of money to the attorney^ own use, is primé, facie an assignment; but being not a direct, but only a constructive assignment, it is capable of being explained by extrinsic evidence.
An offer to pay any sum of money by way of compromise of a pending controversy, cannot be received in evidence against the party making it; but any independent facts admitted during the treaty of compromise, may be given in evidence as confessions.
This was assumpsit for money had and received.
It was proved that the defendant received the money by virtue of a sealed instrument, dated September 3, 1812, by which Samuel French, the plaintiff’s intestate, and Eliphalet Woodbury irrevocably appointed the defendant their attorney, for tnem and in their names, but to his own use, to recover and receive of Richard W. Mead, of Cadiz, in Spain, and from every person whomsoever, all such moneys &c. as might be coming to the constituents, or either of them, on account of the schooner Hannah and her cargo. French died in 1819. The money was received in 1824, in virtue of an award of the commissioners under the treaty with Spain of February 22, 1819, for the capture of the schooner Hannah, three fourths of which belonged to French and one fourth to Woodbury.
*390The plaintiff offered W. B. Bannister as a witness ; who testified, that after the defendant received the money, the witness (representing one or more creditors of French) called upon him respecting it, when he told the witness what amount he had received, and gave him a memorandum, which was to be a confidential communication, and was not to be shown to the creditors. The witness was to communicate these things in his own way to the creditors, and if they would accede to the terms proposed, the defendant was ready to pay a certain sum. The creditors refused to accept the terms, and the compromise was not made. The defendant’s statement respecting the intent with which the power was given, was connected with his proposition for a compromise. The witness did not represent French’s administrator in that conversation. The counsel for the defendant objected to the evidence proposed, of the confession of the defendant as to the intent with which the power was given and accepted, on the ground that it was part of a conversation which was had when the defendant was endeavouring to compromise the matter in dispute ; but the objection was overruled. Bannister then testified, that the defendant said the power was originally received by him as collateral security for his own demands, and for other demands, in his name, for the use of underwriters upon policies where he had acted as broker ; that he had received some money from the Spanish government before the treaty, which he had paid over to the creditors and to French ; that the sum received under the treaty exceeded his own claims by about 2000 dollars ; that however he considered that he had a right to keep the whole, having given as much for the claim against the Spanish government as it was worth, at the time when it was assigned to him ; but that he was not desirous of retaining more than the amount of his demands against French; and that in addition to certain sums which he specified, he was entitled to about 100 dollars for certain notes which he had bought against French. It appeared that the defendant had paid to the administratrix of Woodbury a part of the money received under the treaty.
The plaintiff consented to a nonsuit, subject to the opinion *391of the whole Court whether he could maintain the action ; if he could, an auditor was to be appointed; but otherwise the nonsuit was to stand.
Nov. 7th.
Nov. 11th.
The action was first tried at April term 1825, when the testimony of Bannister was not introduced ; and at the subsequent November term, Gerrish (pro se) contended that the letter of attorney was a naked power, and that by the death of French it became inoperative ; citing Walsh v. Whitcomb, 2 Esp. R. 565 ; Lit. § 66 ; Combes’s case, 9 Co. 76 ; Wynne v. Thomas, Willes, 565 ; Hunt v. Ennis, 2 Mason, 244 ; but the Court seemed clear, that prima facie, the instrument must be construed to be an assignment. Another trial was had at May term 1826, when the new evidence above stated was offered and admitted.
Gerrish now contended that the admissions of the defendant,
not having been made to the administrator of French, but to a stranger not authorized to make a compromise, did not come within the rule of evidence relied on by the defendant at the trial.
J. Pickering and Marston, contra,
assumed the point as decided, that the property passed to the defendant by the letter of attorney; and they said that the representative of French could not set up the want of consideration, the instrument being under seal.
With regard to the distinction taken between admissions made to the creditors of French and such as are made to the plaintiff, it should seem that the plaintiff can come into court only on the ground of an equitable right; for in law he is estopped by the deed; and as the creditors are now the real party, the case stands as if the admissions in the offer to compromise had been made to the plaintiff himself.
But taking the whole confession together, it shows that the plaintiff has no equitable ground of action.
Parker C. J.
delivered the opinion of the Court. The first question is, was the testimony of Bannister admissible. The objection is, that the admissions and confessions proved by it, took place in a conversation relating to a proposed compromise, and for that reason, as well as because it was a confidential communication, it ought to have been rejected.
*392The rule undoubtedly is, that an offer to pay any sum by way of compromise of a pending controversy, is not to be given in evidence against the party making it. This rule is. founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured. But this rule seems confined to the mere offer of compiomise, for it is held that any independent facts admitted during the treaty for a compromise, may be given in evidence as confessions. This limitation or exception to the rule is laid down in Starkie and Phillips, and was adopted by this Court in the case of Marsh v. Gold, 2 Pick. 285.
According to this construction of the law, the offer by Sweetser to pay any sum on account of this demand, to Bannister, claiming for the creditors of French, should not have been received ; but his admission that he had received a certain sum of money on account of that claim, under the Florida treaty, his treatment of the money after he received it, and other acts respecting it tending to show that he held it as trustee of French rather than to his own use, were ad missible as facts independent of the offer to compromise. With that evidence we cannot doubt the defendant’s liability to the administrator of French, or that he would be liable to French himself, were he alive, except so far as he might have a right to retain for his own debt and expenses, and for the debts of such other creditors of French as he represented. His disposition of the money which he first received under the power of attorney, paying part to the creditors of French and part to French himself, shows clearly that he did not treat it as a purchase. His disposition of part of the sum received under the treaty is of a like character. His purchasing notes against French speaks strongly to this effect.
But it is said that by the terms of the power the assignment is absolute to the defendant, it being irrevocable and to *393the use of the defendant. These words in a power of attorney admit of explanation, for the instrument is not a direct, but only a constructive assignment of the debt. The true intent and meaning is explained by the acts and declarations of the defendant. His assertion of right now is but feeble, relying upon the letter rather than the spirit of the instrument. To his own use undoubtedly meant, to secure or pay the debts due to the plaintiff and other creditors for whom he was the agent, but if those debts were otherwise paid, there was a resulting use to French.
Auditor appointed.