Fifield v. Richardson

34 Vt. 410 | Vt. | 1861

Aldis, J.

The first question raised in this case is, whether an execution issued for sixty days, when its hould have been for one hundred and twenty days, is void.

After the elaborate argument which was made in Bond v. Wilder, 16 Vt. 393, and the brief and positive reaffirmance in that case of our old decisions that it is void, “ we shall not now suffer that point to be stirred.”

The execution being void, the return of the officer upon it, that the judgment was satisfied, is void also ; and the judgment for all that was done under that execution stands in full force, precisely as it did before the execution was issued and. the void proceedings had under jt.

The first two requests to charge • were therefore erroneous, and the charge in this respect was right.

The third request of the defendants, that the jury should be told that the- settlement of the 18th of June, 1849, operated by the agreement of the parties to make the receipt of the money by the plaintiff on the execution a satisfaction and payment of the judgment, was complied with by the court. If nothing further had appeared in the case, the plaintiff must have failed in his suit.

The next request, that the subsequent payment of the money back to the defend mCs agent by the plaintiff, was a voluntary payment so that the judgment can not be enforced, — is clearly untenable. The defendants, through I-Iolbrook as their agent, wholly repudiated the settlement of Juno 18th, and claimed the repayment of the money, and threatened to biing a suit to collect it. The plaintiff yielded to their claim rather than have a lá.wsuit upon that point. By mutual agreement that settlement was unsettled, or rather was treated as if it had never been, — the money was paid back not upon the ground that the judgment was extinguished, — but in l’eality upon exactly the opposite ground that the plaintiff could not hold the money either by virtue of the execution, or by virtue of payment and satisfaction in the settlement; but that the money belonged to the defendants. Receiving the money upon this ground, the defendants must be bound by the necessary legal results of their position, viz :— that if the money has never been applied either through the execution or the settlement, so as to belong to the plaintiff, then the judgment has never been satisfied, but has always remained in force.

It is claimed now that the judgment was extinguished by the settlement, and that if the plaintiff 'and defendants afterwards agreed to have the money paid back to the defendants- upon the basis that it was not so extinguished, such acts of the parties would not revive the judgment, hut would give the-plaintiff the right to recover back the money in an action of assumpsit. But how could the plaintiff recover back this money upon any such implied promise, when the understanding upon which he repays it is, that, it is not his money, hut belongs to the defendants, and is paid to them with full knowledge on both sides of all the facts, and upon claim made by defendants and conceded by the plaintiff, that the plaiutiff had acquired no right to retain it either, by the execution or the settlement ? The nature of the transaction precludes any such recovery ; and unless the judgment is held to have been kept alive and to be now in force, the plaintiff is remediless, whilst the defendants keep their money and yet pay their debts.

The acts and claims of the defendants, by which they obtained the money, estop them from now setting np either the execution or the settlement to the prejudice of the -plaintiff. They have induced the plaintiff to act upon the basis of their claims. They must thereby be estopped from denying the facts upon which they induced the plaintiff to act, and must be bound by the necessary consequences resulting from the existence of such facts.

In regard to the agency of Holbrook, and that the money must have been paid to him not on account of his attachment, but as agent of the defendants and upon their claim, the charge of the court was in compliance with the defendant’s request.

But one question remains, — the admissibility of Hancock’s testimony. He did not see the money paid by the plaintiff to Holbrook, but immediately after its payment he came into the room, heard both parties say that it had been paid — heard the plaintiff demand a receipt to be preserved as a voucher, heard Holbrook decline giving one on the ground that it was not necessary, and that the persons who were present (of whom Hancock was one,) were all witnesses to the fact that he had paid the money; and heard the plaintiff assent to the suggestion as “well enough.” The transaction could not be considered as ended so long as on the occasion of the payment and before the parties had separated anything according to the usual course of business remained to be done in regard to it. The giving of a receipt on the payment of money, or on the settlement of a claim, is according to the usual course of business. It was a voucher which the plaintiff had a right to demand and which the agent of the defendants ought to have given. Until it was given, or waived by the plaintiff, the transaction was not finished. When Holbrook proposed to refer to the pei-sons then present as witnesses, whose recollection should stand in lieu of the receipt, and Fifield assented, then, and not till then, was the transaction ended. The evidence was clearly admissible, and the charge of the court was at least as favorable to the defendants as they could claim.

Judgment affirmed.