59 Mo. App. 610 | Mo. Ct. App. | 1894
It appears from the record before us that on the tenth day of November, 1892, the respondents commenced a suit by attachment on an account against M. P. Hunter and caused a certain stock of merchandise to be levied upon under the writ. A few days thereafter the appellant Wallenstein brought a similar suit against Hunter, also causing a levy of his writ on the same stock of merchandise. These suits were respectively prosecuted to judgment.
While the attachment suits were still pending, one Limbert, who had a chattel mortgage on the attached property, sought to purchase the claim of the respondents, and to that end opened, through an agent, negotiations with them. The result was that the respondents wrote to their attorneys as follows, to wit:
“Kansas City, Mo., Nov. 22, 1892.
“Messrs. Pattison é Timmons, Att’ys, Carrollton, Mo.
“Q-entlemen: Last Saturday just after your Mr. Pattison left our office, Mr. Gr. D. Viles, of Norborne, came in to see us about the Hunter account, and we made him a proposition to take $350 for the claim, and they pay the costs. We wish you would fix this matter up and assign our claim to Mr. Viles or to whomever he desires upon payment of the $350 to you and the settlement of all costs, including rent, advertising and all other costs. Do not fail before making the assign
“[Signed] Barton Bros.”
After the receipt of this letter, Limbert met respondents’ attorneys and the sheriff, and in settlement of the respondents’ claim delivered the respondents’ attorneys a check for $350 and also gave the sheriff a check for the costs that had accrued in the attachment suit. The respondents’ attorneys and the sheriff each thereupon gave Limbert a receipt, but exactly what was stated in these receipts does not appear. As soon as the checks and receipts were exchanged, Limbert demanded of the sheriff the keys of the house in which the merchandise was contained. The sheriff said that this he could not do for the reason he had another attachment on the goods in favor of appellant, for about $400. Limbert then said, “I did not know that. Why did you not tell me?” The sheriff then remarked, “Well, I thought you knew it.” Limbert then replied, “If I had known it I would not have undertaken to make any kind of settlement. I want my checks back.” The sheriff then remarked, “We don’t want to take advantage of you; if you did not know, why, here is your check back.” The respondents’ attorneys told Mr. Limbert the same thing, and thereupon the checks and receipts were re-exchanged, and thus the matter ended. There was no order for the release of the merchandise from the levy of the attachment. One of respondents’ attorneys, Mr. Timmons, who acted for plaintiffs in the matter, testified that he did not take the check as full payment of respondents’ claims. He took it as an ordinary business transaction without knowing anything of the pecuniary circumstances of Mr. Limbert.
On substantially this state of facts Wallenstein filed his motion in the court where the said judgments
It is the well settled law of this and some of the other states, as will be seen by reference to the authorities cited in the brief of the counsel for appellant, that the right of attaching creditors, who, as against their common debtor, have equal claims to satisfaction of their debts, must depend upon strict law, and if one loses a priority ever acquired, by want of regularity or legal diligence in his proceedings, it is a case where no equitable principles can afford relief; it is a case where the equities are equal, and the right must be governed by the rule of law. If the first attacher once loses his lien, the rights of the junior attachers intervene and the lien of the latter takes precedence. The first lien may be lost in many ways without regard to the good or bad faith of the parties. It will be postponed . to the junior attachment liens if the action is not prosecuted to a judgment; that is to say, settled out of court and the suit discontinued. Adler v. Anderson, 42 Mo. App. 189; Burnham v. Blank, 49 Mo. App. 56; Branden
There would be much force in the contention of the counsel for the appellant were it not that it is based on what we think to be a false assumption of a fact, to wit, that the respondent’s action was settled out of court and discontinued. Evidently the trial court found such was not the fact. In the first place, the evidence conclusively discloses that there was not that meeting of minds or concurrent assent of the parties which is an essential element of every contract, without which it can not have validity.
The respondents by their letter authorized their attorneys to assign their claim to Mr. Limbert. This they had a legal right to do, pending their action therein. R. S., sec. 2204. They did not authorize a settlement and discontinuance of their action. If their attorneys undertook to do so, it was manifestly beyond the power conferred by the letter. The latter had not, as attorneys for respondents, any implied authority to settle or compromise plaintiffs’ claim. Lewis v. Baker, 24 Mo. App. 682; Davis v. Hall, 90 Mo. 659. So that, in so far as the respondents’ attorneys undertook to settle or compromise respondents’ claim, their action did not bind them. The respondents neither settled nor authorized a settlement and dismissal of their action out óf court. It inevitably results that a settlement of the respondents’ claim was not made or attempted to be made by respondents or by anyone having authority to do so for them. If the intention of Mr. Limbert was to settle the respondents’ claim by paying a certain sum of money and thus obtaining a discontinuance of the action, the respondents did not in any way assent to that. Such an intent, it is plain, if it existed, was only in the mind of Mr. Limbert and possibly in that
But if respondents’ attorneys had authority, either express or implied, as they had not, to bind respondents by a settlement of their claim, still we are unable to perceive that there was a settlement of the attachment suit made out of court by plaintiffs’ attorneys and Mr. Limbert. Mr. Limbert paid no money. He only gave his check for the amount which he proposed to pay. It was not expressly agreed that the check should be accepted as payment of the amount. Until it was paid there could not be said to have been a payment. State v. Wagers, 47 Mo. App. 438; Appleton v. Kennon, 19 Mo. 641; Block v. Dorman, 51 Mo. 32. If the contention be that the transaction in question constituted an accord and satisfaction, it can not be upheld on that ground, for the reason that “ accord without satisfaction is no bar.” 2 Chitty on Contracts [11 Am. Ed.], 1122. Not only this, but accord and satisfaction to constitute a bar must be full, perfect and complete. The accord must be executed, not executory. 5 Lawson’s Rights, Rem. & Pr., sec. 2567; Smith’s Leading Cases [8 Am. Ed.], 644. (Note by Judge Hare). If the transaction between respondents’ attorneys and Mr. Limbert had been completed upon principle, its effect would have been that Mr. Limbert would have been subrogated to the rights of respondents in respect to the subject-matter of the attachment. 2 Beach, Mod. Eq. Jur., sec. 804. And to accomplish this no formal assignment would have been necessary. 2 Beach, Mod. Eq. Jur., sec. 805; Sheldon on Subrogation, sec. 12. The alleged payment, it must be remembered, was not made by Hunter, the common debtor, but by a mortgage creditor; and such payment by the former would not have worked an extinguishment of the claims of the respondents. Allenv. McDer
We are unable to discover any principle that would justify us in declaring that the attachment lien of the respondents ought to be postponed to that of the appellant. We can find no fault with the judgment of the trial court upon the appellant’s motion, and so affirm the same.