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of sixty-two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventyfive per centum of the sea-pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea-pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement."

In January, 1907, appellant was nominated by the President for advancement to the grade of lieutenant commander on the retired list, in accordance with the provisions of the act of June 29, 1906, first above mentioned; the nomination was confirmed by the Senate, and the appellant was shortly afterwards advised in the usual mode by the Secretary of the Navy that he had been advanced from June 29, 1906, the date of the passage of the act.

The question is, whether the appellant (having all other qualifications for advancement under the act referred to) is to be considered as having been retired for disability incident to the service; and this depends upon the question whether the special act of June 10, 1902, operated to change his status from that of an officer retired for incapacity not incident to the service, to that of an officer retired for incapacity incident to the service.

The Court of Claims resolved this question against the claimant (46 Ct. Claims, 361). This we think is correct. The case is in effect governed by Potts v. United States, 125 U. S. 173, and United States v. Burchard, 125 U. S. 176.

The argument to the contrary is based upon the act of June 10, 1902. Its title is "An act for the relief of Lieu

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tenant Jerome E. Morse." This is invoked as an aid in interpreting the meaning of the enactment. The query propounded is, "What was the relief that Congress intended to grant the claimant unless it was relief from the consequences of the wrong and injustice that had been done him by the Retiring Board in 1874?" But this query begs the whole question. There is nothing in the record to show that any wrong or injustice was done by the action of the Retiring Board. The answer to the query is, we think, written in unmistakable terms in the act itself, and in § 1588, Rev. Stat., to which it refers. The intended relief consisted in an increase of pay, measured by the difference between half-pay and three-quarters pay, for the rank that he held at the time of his retirement; that is to say, for the rank of lieutenant.

The case differs widely from McLean v. United States, 226 U. S. 374, and is not controlled by it.

Judgment affirmed.

CITIZENS NATIONAL BANK OF ROSWELL, NEW MEXICO, v. DAVISSON.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 551. Argued December 4, 1912.-Decided May 26, 1913.

Under the act of April 7, 1874, c. 80, § 2, the review by this court of judgments of the Supreme Court of a Territory is confined to determining whether the facts found by the court below sustain the judgment.

The facts found are certified to this court by the territorial Supreme Court either by adopting the findings of the trial court or by making separate findings of its own,

229 U.S.

Argument for Appellants.

One holding in escrow an agreement and money to be paid to one of two parties according to the terms of the agreement, acts at his peril in dealing with either party without the consent of the other; and if the party to whom he pays the amount deposited is not entitled thereto he is liable to the other party.

An endorsement on the outside of the envelope containing the escrow, made by an officer of the bank acting as escrow-holder, does not protect the bank if it is not in accordance with the escrow agreement itself.

One cannot plead ignorance of a fact of which he has notice as an excuse for violating rights of parties whom he is bound to protect.

The fact that no officer of the bank has read an escrow agreement does not relieve the bank of responsibility for its action based on a separate memorandum made by one of its officers and which does not express the terms of the agreement.

An extension verbally agreed to for completing the record title to the property where the contract to convey expressly provides for such an extension without specifying its length in case defects are developed, is not a parol variation or modification of a written contract. In this case a bank acting as escrow-holder with notice of the contract, having by paying over to one party failed in its duty to act impartially, it is liable to the other party who was entitled to the money under the contract.

16 N. Mex. 689, affirmed.

THE facts are stated in the opinion.

Mr. William C. Reid, with whom Mr. James M. Hervey was on the brief, for appellants:

The holder of papers deposited with a bank in escrow can redeliver the paper deposited by one of the parties, to him, after the other party to the escrow agreement is in default in the performance of everything he was bound to perform, without the consent of such other party in default, or order of court. 16 Cyc. 576, 584; 11 Am. & Eng. Enc. of Law, 352; Humphrey v. Richmond R. R. Co., 13 S. E. Rep. 985; Burlington R. R. Co. v. Palmer, 42 Iowa, 222; Bodwell v. Webster, 13 Pick. 411; Hayton v. Meeks (Ark.), 14 S. W. Rep. 864; Equity Gaslight Co. v.

Argument for Appellants.

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McKeige (N. Y.), 34 N. E. Rep. 898; Riggs v. Trees (Ind.), 5 L. R. A. 696; Hoyt v. McLagan, 87 Iowa, 146.

The court below erred in holding that the appellant bank's liability in this action is not limited by the escrow agreement and also erred in holding that the liability of the bank is to be determined by the contract of Owens and Berryman, to which contract the bank was not a party, and the terms of which were not brought to its knowledge.

The court below erred in holding that the contract between Berryman and Owens did not become unenforceable under the statute of frauds.

The bank was a stranger to any alleged parol contract, but if, as assumed by the court, it is bound by it, it could only be so bound as a privy of Berryman and the statute of frauds is available by parties to the contract, their representatives and privies. 29 Am. and Eng. Enc. of Law, 807.

The contract in question being for the sale of land, is within the statute of frauds, and the agreement that the estate should have further time in which to secure an order of the court, was a subsequent and non-permissible variation of the contract in writing by parol. Emerson v. Slater, 22 How. 42; Swain v. Seeman, 9 Wall. 254, 274.

The effect of changing the time for performance of a written contract that was in escrow with the bank would be to make the entire contract a parol contract. Kirchner v. Laughlin, 5 N. Mex. 394; Hasbrouck v. Tappen, 15 Johnson, 200; Hersley v. Savanstrom, 41 N. W. Rep. 1027; Athe v. Bartholomew, 33 N. W. Rep. 110; Abel v. Munson, 18 Michigan, 305; Cook v. Bell, 18 Michigan, 389; 29 Am. and Eng. Enc. of Law, 824.

Oral promises to convey land gain no validity at law by reason of the taking possession of land by the proposed purchaser. 20 Cyc. 289.

Unless the contract expressly provides that a deed shall be made by a third person, it must be made by the vendor

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himself, even though the words of the contract are that the vendor shall execute the deed or cause it to be executed. 29 Am. & Eng. Enc. of Law, 701; Warvelle on Vendors, § 419.

Mr. W. A. Dunn, with whom Mr. G. A. Richardson and Mr. Ed. S. Gibbany were on the brief, for appellees.

MR. JUSTICE PITNEY delivered the opinion of the court.

This action was brought in the first instance in the District Court of Chaves County, in the then Territory of New Mexico, by Davisson, as plaintiff, against the Citizens National Bank of Roswell and Mrs. Owens, as defendants. He set up a claim to be paid $5,000 as commissions on a sale of real and personal property made by him as broker in her behalf to one C. C. Berryman, claiming a right to recover against the Bank on the ground that Mrs. Owens had given to him a written order directed to the Bank for payment of the $5,000 out of money of hers that was in the hands of the Bank. Mrs. Owens answered for herself and others as Executors of Solon B. Owens, deceased, denying liability to Davisson, on the ground that the sale in question had not been consummated; and, by a cross-complaint against the Bank, she set up that a contract of sale was made by her in behalf of the Executors of Solon B. Owens, deceased, with Berryman, and, upon its execution, the sum of $9,173.32 was by agreement of the parties deposited in the Bank together with a copy of the agreement; that after examination of the title by Berryman he required the Executors to procure an order of court authorizing them to sell and convey the land, whereupon it was agreed that the time for the conveyance of the title should be extended until such date as the Executors should be able to obtain the order so required, and that in the meantime Berryman should enter into

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