Dalpine v. Lume

145 Mo. App. 549 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).

Probably with more particularity than necessary, we have set out the salient facts in the case as developed at the trial, not, however, giving figures of the basis of settlement, as in the view we take of the case that is not material. In our view of this case and of the testimony in it, the settlement arrived at between plaintiff and the defendant by which one hundred dollars were paid to plaintiff and for which he signed the receipt heretofore copied, comes more closely under the domain of a compromise of disputed matters than a case of intended settlement and adjustment of accounts between the parties with the nicety usually requisite in arriving at a basis for a settlement on dissolution of a firm. Referring it to the class of compromises, we find the rule in equity to be that such transactions, “will not be disturbed for any ordinary mistake, either of law or of fact, in the absence of conduct otherwise inequitable, since their very object is to settle all such possible errors without a judicial controversy.” [2 Pomeroy’s Eq. Jur. (3 Ed.), sec. 850.] The author further calls attention to the fact that there are dicta, “to the effect that a party will be relieved from a compromise in which he has surrendered property or other rights unquestionably his own, through a misconception of a clear legal rule, or an erroneous supposition that a legal duty rested upon him, whereas plainly no such duty existed; but the decisions show that these dicta must be confined to circumstances which render the compromise a virtual surprise, or to cases in which it was induced by positive inequitable conduct of the other parties. Voluntary settlements are so favored that if a doubt -or dispute exists between parties with respect to their rights and all have the same knowledge, or means of obtaining knowledge, concerning the circumstánces involving these rights, and there is no fraud, misrepresentation, concealment, or other misleading incident, a compromise into which they thus voluntarily enter must stand and be enforced, although the final issue may be different from that which was anticipated, and although the disposition made by the parties in their agreement may not be that which the court would have decreed had the controversy been brought before it for decision.”

It is pretty plain that according to the statement drawn up by Dalpine and Nasse, and according to the way the interests of the respective parties were then cast up, there was only about sixty or seventy dollars coming to this plaintiff. That may or may not have been the correct amount; it may have been the result of applying a wrong rule of accounting, adopted by Mr. Nasse, but when plaintiff, with the facts before-him, ended the matter by saying that he would retire if he were paid one hundred dollars, it is pretty clear that he was not relying upon the agreement of dissolution or the correctness of Mr. Nasse’s figures, but was making an offer that can bear ■ no interpretation but an offer of compromise. It is true that in his testimony, plaintiff said something about the extra thirty dollars covering some stock not taken into account. That can hardly be, however, for the testimony of Mr. Nasse and of the plaintiff himself is that the inventory and appraisement was complete and covered everything, and, indeed, the only contention now made is, not that there was something excluded from the inventory and the appraisement, but that a mistake has been made in the manner of distributing this surplus, a misapplication of proper accounting or bookkeeper’s rules, legal rules, more accurately, in the distribution of this surplus. To end the matter between them, however, plaintiff asked and was paid one hundred dollars, and he himself drew up a receipt, with full understanding of the terms, acknowledging full payment of all claims at law or in equity, even being careful to have the term “equity” explained to him. It is a serious question in this case as to whether the mistake under these facts is one of law or of fact. The decisions on this point turn upon such nice distinctions that while that point is suggested by counsel for defendants, we do not think it necessary to enter into it. Counsel make the further point, that there was no offer upon the part of the plaintiff, either in his petition or at the trial, to return the one hundred dollars, which beyond dispute were paid to him. It is a rule, without exception, that one coming into a court of equity, must do equity, and before he can have the transaction undone which he desires to repudiate, he must be required to return all that he has received on account of it. But this need not be by pleading an offer or tender of the return of that which was received. The rule is that where the party inserts a general prayer for relief and proffers to do equity on his part, these general allegations are sufficient, and the court will require him to refund or put the other party in statu quo as the price of the decree it gives. This has been distinctly held in a number of Missouri cases, which were equitable actions, when treating of the pleadings in them. [The case of Whalen v. Reilly, 61 Mo. 565.] The opinion by Judge Sherwood is a .leading authority in point. The case of Paquin v. Milliken, 168 Mo. 79, l. c. 104-6, follows the rule announced in the Whalen case. This court in the case of Haydon v. Frisco Railroad, 117 Mo. App. 76, l. c. 106 and 107, reviews these authorities and so held. The Haydon case was affirmed on this point by the Supreme Court (222 Mo. 126, 121 S. W. 15). The rule which requires a party to do equity before he is entitled to equity, as said by Judge Sherwood in Whalen v. Reilly, supra, “finds its application not in questions of pleading nor by what the plaintiff offers to do therein, but in the form and frame of the orders and decrees, both inter-' locutory and final, whereby equitable terms are imposed as a condition precedent to equitable relief granted.”

Upon consideration of all the facts in the case, we have concluded that the action of the ciruit court in finding for the defendants is for the right parties and its judgment is affirmed.

All oncur.