34 Mo. App. 548 | Mo. Ct. App. | 1889
Lead Opinion
After having gone over the entire record of this cause, and read with care the very elaborate statements, arguments and briefs of the eminent counsel on both sides, we feel the material facts may be narrowed to about these: Bassett and Henry, lawyers, agreed to successfully defend Mt. Pleasant township against certain bonds, for a conditional joint fee of seven thousand dollars; that if successful in one suit the township would then pay the seven thousand dollars, but if the bonds were subsequently held valid that these attorneys would return the said seven thousand dollars to the township.
In the first case determined (Harshman case) the judgment was for the township, and the seven thousand dollars was thereupon paid to Bassett with a renewed obligation on his part, that, in case the bonds were ultimately held good, he would return said sum to the township. Bassett, refusing to pay any part of this sum to Henry, was sued by Henry, and the judgment now sought to be enjoined was the result. In that suit, among other defenses, Bassett interposed his possible liability to return the money to the township, but the defense was not permitted. 75 Mo. 89.
After the rendition of Henry’s judgment against Bassett, wherein Bassett -was held to a division of the fee with Henry, the bonds were held valid, and Bassett
Now, under this state of facts, did the trial court, sitting to administer equity, properly enjoin the collection of the Henry judgment %
I. It is stated as a general principle, in the administration of equity in such cases, “that any facts, which prove it to be against conscience to execute such judgment, and of which the injured party could not; have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or agents, will authorize a court of equity to interfere by injunction, to restrain the adverse party from availing himself of such judgment.” 2 Story’s Eq., sec. 887. Such interference will not be had, however, on account of error or mistake in judgment of the court of law, “but only upon the ground that the party had some defense against the claim, which has occurred, or first came to his knowledge, since the trial in the court of law, whereby it would be a virtual fraud, in the party recovering at law, now to insist upon enforcing his judgment.” 2 Story Eq., sec. 1572; Marine Ins. Co. v. Hodgson, 7 Cranch, 336; Emerson v. Udall, 13 Verm. 483.
The courts have, on frequent occasions, recognized the duty of courts of equitable cognizance to relieve a judgment debtor from the enforcement of a judgment, when to enforce the same would be against equity and good conscience, and the defense was one that the judgment debtor had never been able to interpose in the action at law. “A court of equity has jurisdiction to entertain a bill to set aside, or annul, a judgment at law, where a proper state of facts is shown, and where, at law, the defence was inadmissible,” quoted from Lamb v. Anderson, 1 Chand. (Wis.) 224, see also Devoll v. Scales, 49 Me. 300.
To permit the judgment of Henry v. Bassett to be enforced, under the circumstances here presented, would, it seems to us, be most unconscionable and unjust. It is not a case of mere cross-demands, but it is a case where the judgment debtor, Bassett, was charged and forced to account for that which he has since the rendition of the judgment been compelled to return — to give back to the township — and that, too, in pursuance of Henry's own understanding and solemn agreement. The identical matter in the possession of Bassett, when the judgment at law was entered, and on account of which Henry obtained said judgment, has been, by the express agreement of Henry, returned to Mt. Pleasant township, and shall Henry’s representatives be permitted to collect this judgment, in face of the fact that Bassett has done with the seven thousand dollars, just as stipulated and agreed should be done, to-wit, returned the same to the township in the event, which happened, of the unsuccessful termination of the bond suits? Here is presented a very strong case of equitable payment. It is not unfair to place Henry in the position of being present at Bassett’s settlement with the township, and consenting, then and there, to the payment made; for, although not present in person, he had, in the inception of the business, solemly agreed and pledged himself, under his hand and seal, that, in case the litigated cases should be ultimately decided adverse to the township, he and Bassett would repay and return
This action in equity to stay proceedings on this judgment at law does not draw into question such judgment, or in any way claim a right to revise it. It sets up an equity independent of the judgment, admits the validity of the judgment, but suggests reasons why the party who has obtained it ought not to be allowed to enforce the same, because of equities matured since the said judgment was obtained. Parker v. Judges, 12 Wheat. 563.
It is well settled that the judgment of a court of law cannot be disturbed in a court of equity on account of any defense which was tried, or might have been tried, in such action. 13 Verm. 483, and other cases, supra. But the matters here alleged and proved by the plaintiff, whereby relief is sought, are matters occuring since the trial and judgment in the suit at law of Henry v. Bassett. We do not regard the case of White, Adm’r, v. Healy, 54 Mo. 592, as in conflict with the ruling hereinbefore indicated. That was an action at law for money had and received, and defendant sought to interpose a set-off on account of having paid some notes of the deceased after his death, on which
II. It is further contended by defendant’s counsel, because of the fact that plaintiff Bassett extinguished the liability of himself and Henry to the township, by turning in, as payment, bonds of said township, which Bassett had theretofore purchased at a large discount, and that he had never accounted to Henry for any portion of profits on such venture that there is no equity shown in plaintiff ’ s case. We think this position is not well taken. These bonds, so used by Bassett in adjusting the joint liability of Henry and Bassett, were purchased somewhere from 1877 to 1879, and after, it would seem, Henry had brought his suit for his portion of the seven thousand dollars. The attitude of Henry was then, and always has been, that Bassett owed him in money the one-half of this fee and he sought, and acquired a judgment therefor, against Bassett. Henry’s position was, and ever has been, that the co-partnership was a limited one, involving the one transaction, that Bassett on getting the fee should pay over to him the one-half thereof ; and he, Henry, sought the aid of the courts to require Bassett to respond, and the judgment in Henry’s favor was the result of that effort. Now will
There is nothing of extortion, or inequity, shown by the record in this case, in the matter of Bassett’s settlement with Mt. Pleasant Township. It is not the case of a payment for a nominal sum of money by one joint obligor of the joint liability, and then calling on his co-obligor for unconscionable contribution, but the testimony shows that the bonds, so used by Bassett in said settlement, were then valid, binding obligations, and such as the township were legally bound to pay. Nor is there any proof showing that such bonds were then worthless than par, the price fixed upon by Bassett and accepted, in settlement, by the township.
Upon' a careful review of the whole case, we think the judgment of the circuit court was for the right party, and should be affirmed.
Dissenting Opinion
dissenting, said:—
The supreme court (75 Mo. 89) has declared that Bassett and Henry were partners.
Matters at law are all settled against Bassett, and at law he is a judgment debtor to Henry for the full amount of the judgment. But he has come into the
The evidence shows that he did not pay back money to the township as a return of the seven thousand dollars’ fee which he and Henry had’bound themselves to return, but that he turned over in discharge of such obligation four one-thousand dollar bonds of the township, which, at face value, with accrued interest thereon, amounted to seven thousand dollars (less $4.67 which he paid in cash). Bassett bought these bonds, being of the same issue he and Henry were defending for the township, at ten cents on the dollar, for the purpose of turning them into the township in discharge of his obligations to that effect if a liability should accrue thereon. He only paid four hundred dollars in money for them.
In my opinion, one-half of this sum and interest thereon, and one-half the small sum he paid in addition to the bonds, is all that he should be allowed against the judgment he seeks to enjoin by the proceedings now before us.
That Bassett is only entitled to an injunction to. the extent of the money he is out strikes me as a proposition apparent by its statement. It may be demonstrated : Suppose, instead of turning in bonds, he had compromised with the township by paying to it, in cash, ten cents on the dollar of the amount of the fee ; would he be allowed one hundred cents on the dollar in this proceeding ? The contention is that Henry ought not to collect the judgment he has obtained for his half of the fee, the whole of which Bassett had collected, for the reason that since the rendition of the judgment, Bassett had paid the fee back to .the. township in response to his and Henry’s bond to that effect. But the fact is, he has not paid it back ; he has turned over bonds which the township has accepted in lieu of it;
Suppose when Bassett collected the fee from the township, he had immediately paid Henry’s share over to him, and then afterwards having settled with the township, he had sued Henry for the share he had paid him, on the ground that he had been compelled to return the fee ; what would have been the measure of his recovery? Unquestionably it would have been one-half the amount he paid as a settlement with the township. If he settled or compromised at ten per cent., one-half of that sum; if he' settled at one hundred per cent., one-half of that sum. The rights of the parties in this pi’oceeding are exactly as if the last supposition had transpired in fact. Bassett paid only four hundred dollars for the bonds which he turned into the township at seven thousand dollars. One-half, too, of this four hundred dollars, it is fair to assume, was Henry’s money, for it was while Bassett had the whole of the seven thousand dollars in his possession that he bought them. But aside from this, all the bonds of this issue, of which those Bassett bought were a part, though held valid, by a then recent decision of the supreme court of the United States, were at the time of Bassett’s settlement with the township, only worth sixty-five cents on the dollar, including accrued interest to October, 1885, and all, except those turned in by Bassett, were at about that time refunded at that rate. He is thus allowed by his settlement near twenty-five hundred dollars more for the bonds he turned in than they were worth and more than the rate at which the township settled all the others of the same issue.
The case may be stated thus: Bassett and Henry were full and equal partners in this transaction. In 1876 Bassett collected of their client the full fee due the partnership. He retained and used the whole of it,
The principle or reason which will sustain the opinion of my brethren would operate as a satisfaction of Henry’s judgment, though Bassett had paid but a single dollar in liquidation of his and Henry’s obligation to the township, or, indeed, if the township had cancelled the obligation without any payment.
The result of the partnership relation between these parties, which is covered by the strict rules which govern other trustees, they occupying that relation to each other (Pomeroy v. Benton, 57 Mo. 531) is that Bassett gets the full fee of seven thousand dollars, less his expense account, and his partner does not get anything. I am not able to concur in the conclusion to which the other judges have arrived.
