Assumpsit by appellant against appellee, to recover money paid on the following agreement:

“ $1000. Springfield, Ill., Jan. 26, 1875.

Received of Thomas Moore one thousand dollars, in consideration of my agreeing hereby to defend his brother, James Moore, who is indicted for having in possession and passing counterfeit money, and secure his acquittal and release from said charge in full, and forever keep him harmless from the same. And I specially agree that he shall be set at full liberty at the June term of U. S. District Court, A. D. 1875. Six hundred dollars of said amount is paid to me in cash, and the other four hundred paid in a note of the said Thomas Moore, due first day of July, A. D. 1875. I further and specially agree that if said James Moore is not released at said time, I will pay back to said Thomas Moore the six hundred dollars paid me in cash, and deliver to him his note for four hundred dollars given this day, with ten per cent interest from the date hereof.

[Signed] James P. Robinson.”

James Moore did not appear at the June term, 1875, or at any subsequent term of the United States District Court, to answer to the indictment pending against him, and has not been tried upon or released from said charge. Neither appellant nor appellee is shown to be in anywise in fault for the non-appearance of James Moore to answer to the indictment. It is very clear that the only contingency upon which appellee was entitled to retain the $600 paid him, and to collect the $400 note, was the legal acquittal of James Moore upon a trial in the United States District Court. Appellee, by his contract, stipulated that he should retain the money and the note only upon the happening of that contingency. Both parties manifestly contemplated that James Moore should appear and answer to the charge, and his failure to do so is equally g surprise to both, and there is neither reason nor justice in holding that this shall operate to the prejudice of appellant. He has not received what he agreed to pay for, and appellee has that which he agreed to refund if appellant did not receive the stipulated consideration. What appellee in good faith did, pursuant to the terms of the agreement, before ascertaining that its performance had become impossible, he is entitled to compensation for, and this should be deducted from the $600. The balance appellant is entitled to have judgment for.

The judgment is reversed and the cause remanded.

Judgment reversed.