189 Iowa 882 | Iowa | 1920
G-. L. Mundorf guaranteed in writing “the payment of the $600 fee provided to be paid in the above contract * * "' also the $300 fee.” One defense on part of guarantor is that, “because of accident and mistake, the guaranty is unintelligible; and that, through accident and mistake, there was omitted therefrom the statement that the fee was to be $300 if the case was not tried,, but disposed of otherwise than by a trial.” This defense needs no consideration, beyond pointing out the fact that there is no evidence of accident or mistake.
II. The contract provides that the plaintiffs “are to act as attorneys” in a named and pending divorce suit, brought by the then wife of defendant, O. S. Mundorf. They are to “defend” Mundorf “in said action.” They are “to try said cause for defendant” in the named suit ami in court where it was pending, and to do this “to the besi of their ability, regardless of the length of said trial.” They agree to defend “said case” for said defendant diligently ; to consult witnesses; investigate testimony; to “de
The suit of the wife was dismissed by her without prejudice. The plaintiffs filed cross-bill, and obtained divorce for Mundorf on default. The defendants have paid $300, and contend that is all that the contract obligated them to pay. Their theory is this: (a) The $600 is due only if there is a “trial;” (b) the suit brought by the wife was,, of course, not tried, because she dismissed it; (c) the contract is limited to mere resistance of the suit, and does not contemplate the filing of cross-petition; and (d), waiving that, there was no trial on the cross-petition, because the wife made default.
After all, here is a mere question of intention. Was it intended that nothing should be done that was not strictly “defensive,” and that the large fee should be paid only in event that the defense involved a contested “trial?” In solving this question, we consider the circumstances attendant upon the mailing of the contract.
Before the wife of G-. L. Mundorf instituted her divorce suit against him, she left him, and took one of the minor children with her. In her suit, she charged Mundorf with cruel and inhuman treatment, adultery, and drunkenness. She asked alimony in $10,000, and attachment and the custody of one of the minor children. Despite all this, at the time the contract was entered into, the husband desired reconciliation. But surety, we may assume that, though that was his desire, he certainty Avas not willing to be found guilty on the charges made in the divorce petition, nor to yield voluntarily Avhat Avas prayed therein. It surety was
“Although the term ‘defense,’ in its strictly technical*887 sense, does not include a justification, but applies only to the denial of the complaint, in common parlance the word is used as applicable to any facts which defeat the action wholly or partially.” 9 Amer. & Eng. Encyc. (2d Ed.) 175, 176.
We held in Lindsay, Salinger & Co. v. Carpenter, 90 Iowa 529, that, while a counterclaim is not, in strictness, a defense, an agreement to defend for a sum certain, includes service on a counterclaim presented in the case. It is said:
“The agreement to defend the case was certainly not understood to be limited to presenting defensive facts alone, but whatever might be properly presented on behalf of the client.”
Under Paragraph 5 of Code Section 3566, the answer may contain a statement of any new matter constituting a counterclaim. As-to the statute requirement that, if the pleading of one be verified, subsequent pleading by the other must be, we have held that an answer, though it contains a counterclaim, is such subsequent pleading. Yarger v. Chicago, M. & St. P. R. Co., 78 Iowa 650. And a counterclaim is an answer. Town v. Bringolf, 47 Iowa 133. Both the suit by the wife and the cross-action deal with a settlement of the same contractual relation, and for that reason, too, the last is “a defense,” in the eyes of the law. On that reasoning, we held, in Wilson v. Wilson, 40 Iowa, 230, that, in an action for divorce, defendant may set up any matter connected with the subject of the action and occurring after its commencement and constituting a cause of action against plaintiff upon which affirmative relief may be asked, and that such matters constitute a counterclaim. By analogy, this is supported by Foster & Co. v. Ellsworth, 71 Iowa 262. There, the original suit was to cancel a tax deed executed to the grantor of the defendant. Plaintiffs, having failed to show that they or their grantors had title at the time of the tax sale,, dismissed their petition. It is held that, notwithstanding the dismissal, defendant had the
We conclude the cross-bill was within the contract “to defend.”
“A settlement cannot be made by one party. There must be assent of the other. It imports a meeting of the minds of two contenders. The term 'settlement,’ when applied to a lawsuit, means payment, or accord and satisfaction, or something equivalent to accord and satisfaction. 'I have settled the matter’ means it has been brought to a conclusion. 7 Words & Phrases, page 6449.”
The contract relieved from payment if there was a settlement either suggested or ordered by the husband or approved by him. There was no such or any other settlement. What occurred was action that forced the wife to dismiss, and a pressing the divorce question to an end on cross-bill.
V. It may be granted the larger fee was not due unless there was a “trial.” True, there was none in the dismissed suit.
Was there a “trial,” within the contemplation of the contract? As to the cross-bill, there was. The fact that the defendant in the cross-bill defaulted, does not change
“In a general sense, the term ‘trial’ means an investigation and decision of the matters in issue between opposing parties before a competent tribunal.” 28 Am. & Eng. Encyc. (2d Ed.) 636, and cases cited.
VI. There is ño merit in the claim that there was a settlement between the parties to this suit by the payment of the $300 received prior to proving up the cross-petition. It was not a settlement in full. There is no satisfactory evidence that plaintiffs said it was such settlement. The evidence fairly indicates the plaintiffs intended no such settlement. — Affirmed.