| Mo. | Oct 15, 1871
Lead Opinion
delivered the opinion of the court.
The possession and legal title to the leasehold described in the petition is in the defendant, but the plaintiff claims to be the
As an answer to the plaintiff’s claim, the defendant avers a compromise and release of it. He sets up an accord and satisfaction in bar of the suit, alleging, in substance, that since the accrual of the cause of action sued on, the plaintiff and defendant have settled all matters in difference between them, inclüding said supposed cause of action, and that the defendant, in consummation of such settlement, paid the plaintiff the sum of $6,500, and that the plaintiff accepted and received the same in full satisfaction of all claims and demands then existing in his favor against the defendant — the claim now in litigation, as the defendant alleges, being one of them. . .
These allegations are put in issue by the pleadings. T'he case is thus made to turn upon the evidence adduced in proof of the alleged accord and satisfaction.
At the trial, the defendant, for the purpose of proving the averments of his answer, offered and read in .evidence a receipt dated March 7,*1865, which was duly executed by the plaintiff. It appears from this receipt that the defendant, on the day the receipt was executed, paid to the plaintiff the sum of $6,500, and that the plaintiff accepted and received the same as in full satisfaction of a certain judgment and “all claims and demands” then held by him against the defendant. So the receipt reads.
At first blush, the receipt seems to prove the defendant’s case, since the cause of action sued on accrued prior to the execution of the receipt. That view, however,. encounters objections. It is objected that, the receipt fails to meet the requirements of the .statute of frauds (Wagn. Stat 655, §2); and further, that a true construction of its terms excludes the cause of action now in suit. It is proposed.by construction to limit the effect of the receipt to the particular judgment therein set out and described.
The first objection is based upon the assumption that the plaintiff’s equity constituted an interest in real estate that could not be sold or conveyed except by some instrument in writing which should meet the requirements of the statute of frauds in relation to such sales and conveyances.
The agreement was not reduced to writing, nor was anything done in execution of it. The equitable owner nevertheless subsequently sued the bargainees for the purchase money, and it was held that he could not recover, the court deciding that the agreement was for .the sale of an interest in land, and so ysdthin the statute of frauds — nothing having been done in execution of the agreement. But there is no vital resemblance between that case and the one now under consideration. There the suit was founded upon an unexecuted parol contract, and was brought to recover the unpaid purchase money.
Here (assuming that the receipt was intended to cover the matters now in litigation) the purchase money was paid down and in full, if the transaction can be regarded as partaking of the nature of a purchase. At all events the contract was executed, and upon that fact the present defense rests. The defendant is in possession and holds a perfect record title. He neither asks nor needs the assistance of the court. It is the plaintiff that is
The settlement, coupled with the $6,500 payment, extinguished the plaintiff’s equitable interest in the leasehold, and left nothing for a court of chancery to act upon; and this view is amply •sustained by the decision in Hughes v. Moore, the case cited and relied upon by the plaintiff ’s counsel. Chief Justice Marshall, in pronouncing the opinion of the court in that case, said: “To the majority of the court it seems that a compensation for the loss of the title to the land must be understood as a compensation for the land itself, and that the receipt of the money by Cleon Moore [answering to Grumley in this case] would not only have barred an action for damages, hut a suit in equity for the title.,, And again: “The majority of the court is of opinion that, under the contract as stated in this count also, the payment of the money agreed to be paid would have extinguished the right of Cleon Moore [Grumley] to the land in question.” That is precisely what is claimed by the defendant in the present action, namely, that the payment of the money, under the accord, extinguished Grumley’s interest in the property, and barred a suit in equity for its recovery. The decision in Hughes v. Moore, instead of sustaining the plaintiff’s theory, completely undermines and overthrows that theory in its application to the facts of the present litigation. (See Altham’s case, 4 Coke, 305-6; Perkins v. Forniquet, 14 How. 315 ; Vedder v. Vedder, 1 Denio, 259.)
But the main question in the case is, treating the plaintiff’s receipt as a good and valid instrument, sufficient to accomplish all the objects intended by it, what is its real scope and true construction? Does it include the claim asserted in this action?
It appears from the receipt that the money was paid by Webb, and the discharge seemed to embrace several claims against Webb, as well as joint claims against him and Bigham. It was nevertheless held by this court, when this suit was here on a former occasion (see 44 Mo. 456), that the general words of the receipt, namely, the words “ all claims and demands,” construing the receipt upon its face and according to its terms, pointed to the judgment specifically named in the receipt, and that they had no reference to any separate or several liability against Webb, not embraced in the judgment. To that extent-the construction of the receipt must be regarded as judicially determined. It is therefore settled judicially that the receipt upon its face did not include and discharge the cause of action upon which the present suit is founded. The court, however, did not stop there, but went on and held further that this narrow construction was not necessarily the true construction. It was held that the receipt, “ like all contracts, must be interpreted and construed from existing facts, and in the light of surrounding and cotemporaneous circumstances.”
Accordingly the court proceeded to inquire into these facts arid circumstances, and a majority of the court, upon a review of the evidence as it then stood, reached the conclusion that the evidence then appearing in the record failed to show that the plaintiff “had any idea that the settlement included the second suit” — that is, the suit last commenced, which was pending when the settlement was effected, and which will hereafter be more fully referred to. The narrow construction was therefore adhered to, and an interpretation given to the receipt which narrowed its scope to the particular claim (the judgment) therein described. It will therefore be seen that the construction of the
The re-trial was had, and resulted in a judgment for the plaintiff. The ease is now here for a second review, and the question in regard to the scope of the settlement, and consequently of the receipt, is again up for consideration, but upon evidence materially different from that embraced in the former record. If the second suit was embraced in the settlement, then it is agreed that the receipt must be construed with reference to that fact, since otherwise the clear and manifest intention of the parties would be frustrated. If the second suit was included, and .the receipt is construed with reference to that circumstance, then its general words; “ all claims and demands,” must have a broad application and be interpreted so as to include more than the named judgment. If they include anything beyond that, then the narrow construction must be abandoned and the general words of the receipt allowed to operate according to their usual legal import, and as including every claim at the time held by the plaintiff against the defendant, whatever its name or character.
It has not been claimed, and cannot be with any show of reason, that the receipt was less comprehensive than the settlement. The material question, therefore, is — as was the fact when the case was previously here — what did the settlement include? or, in other words, did it include the second suit?
The case was tried the second time in the court below de novo, in accordance with the mandate of this court remanding the cause, and the trial resulted in the accumulation of a very large amount of testimony, occupying some 500 pages of the record. That testimony I now propose to examine with reference to its bearings upon the question already propounded.
We shall be aided in determining the question whether that second suit whs or was not included in the settlement, by a recurrence to the subject-matter of the two suits, to the negotiations which culminated in the settlement, and to the dealings and relations of the parties to said litigation. The following facts are not in dispute: In October, 1855, the plaintiff was the owner of the leasehold in question. He was then in embarrassed circumstances, and had allowed ground-rent and taxes to accumulate against the property. The property was also subject to a deed of trust and to the encumbrance of a judgment lien. His affairs were in this embarrassed condition when he applied to Bigham & Webb, areal estate firm, composed of the defendant and said Bigham, to take charge of said leasehold and collect and apply the accruing rents.
The rents realized were to be applied to the payment of taxes and ground-rent, and to the liquidation of other liabilities then outstanding against the plaintiff. Bigham & Webb accepted the agency and entered upon the discharge of its duties. This was on or near the first day of October, 1855. In less than a week from that time, the plaintiff secretly withdrew from the
The subsequent difficulties between the parties may be regarded as dating from that transaction. When the plaintiff returned from Europe in 1859, he called upon'his agents, Bigham & Webb, and demanded.of them an accounting and the revesting in himself of the title to the leasehold. These demands were, not complied with as regards the rents which accrued after the above-mentioned execution sale, and as regarded the transfer of the leasehold itself. The defendant claimed both as his. The plaintiff thereupon commenced a suit against Bigham & Webb to recover the rents and to re-acquire the title to the leasehold, alleging in his petition that the defendant held the title as the plaintiff’s trustee. It was asked that an accounting should be had, and that the title should be divested put of Webb and revested in the plaintiff.
The plaintiff, May 11’, 1864, recovered a judgment against the defendants in that suit for the sum of $>11,522.54, as the net balance of rents then in arrear to him. The judgment was so far erroneous and excessive that the plaintiff’s counsel had no expectation of being able to sustain it. An appeal was taken, or arranged to be taken, and thus the matter rested for ten months, pending negotiations for a compromise settlement.
Subsequent to the rendition of this judgment, and while the negotiations were going forward, the plaintiff instituted another suit against Webb individually, being the action already referred to as the “ second suit.” The object of this suit, as has been stated, was to recover the value of the material entering-into the construction of the buildings standing upon said leasehold, the defendant being in the possession and use of them.
It has already been stated that both the suits above referred to were pending and undisposed of on the 7th of March, 1865,
Soon after the rendition of the judgment for the $11,522.54, negotiations were set on foot, having for their object some sort of an adjustment between the contending parties. Col. Broad-head, on the part of the plaintiff, and Judge Krum, on the part of the defendant, appear to have taken a leading part in these negotiations. Everything that was done at all was done under their guidance, counsel and supervision. A settlement was effected, and they in their professional relations were parties to it; they were conversant with every detail, and I shall spend no time in arraying the evidence with reference to the establishment of the proposition that they acted intelligently and knew perfectly well what was proposed to be done and what was in fact accomplished. These eminent gentlemen both agree in the statement that the settlement included both suits.
Col. Broadhead testifies guardedly, but on that -point he is clear and positive. He understood both suits to be included in the settlement, and testifies that he supposed his client so understood it also. He testifies that Judge Krum insisted upon including both suits ; that he yielded to the demand; and Broad-head, on the part of the plaintiff, was the negotiator, as appears not only from his testimony but from that of his client. There is no doubt about the scope of the settlement as it was understood by the plaintiff’s counsel, who had the matter in charge. He undei’stood, and had the best of reasons for his opinion, for he was in a position to know the facts, .that both suits weffe included. He testifies also that hfe “ impression ” at the time of the transaction was that “ Grumley knew all about it.” Whence came that impression ? From what quarter was it derived, if not from his own client?
Col. Broadhead not only “understood” the second suit to be included in the settlement — he acted upon that understanding, and dismissed the suit on the very day of the settlement, and it has never been revived. ' The suit was not only dismissed — it was dismissed at Webb’s cost. If the second suit was not
But the plaintiff swears, and the exigency of his case is exceedingly pressing on that point, that the dismissal was the unauthorized act of Col. Broadhead. This, to say the least of it, was placing Col. Broadhead in an undesirable position. The fact asserted is one not likely to occur; it is highly improbable, and requires strong support to secure a belief of it. It is not supplied by Col. Broadhead’s mere want of definite recollection upon the subject, nor by the fact that no definite instructions to dismiss were given. Grumley’s attorney was warranted in doing what was appropriate to the general scope of the settlement, without waiting for specific instructions in regard to the details of the transaction. The dismissal was a mere incident of the settlement, if the settlement included both suits. Besides, the plaintiff’s conduct, subsequent to the settlement, shows that he had abandoned the suit; that it.was not only dismissed from the records of the court, hut from the plaintiff’s care and attention.
The suit had been pending six months when the settlement was made. In the ordinary course of business the day for the trial-could not be distant. Did the plaintiff interest himself about' it? Did he make any preparation for the impending trial? Did he even consult his counsel on the subject? Nothing of the kind appears, and he swears that he was in ignorance of the dismissal until his cause had been out of court for nearly a year and a half.
Is such long-continued ignorance consistent with the idea that he believed himself to be a party to an important and warmly-contested pending suit ? The suit was dismissed March 7, 1865, and the plaintiff’s alleged claim laid dormant for nearly three years, and down to the Commencement of this suit, February 6, 1868. The plaintiff’s temporary absence in Memphis explains nothing. He was still in easy reach of his counsel, and his absence did not arrest the business of the courts, or stay the progress of his suit.
If the investigation were to stop here, and the case were to be turned upon its undisputed facts, and the testimony of the plain
■ The two suits pending at the date of the •settlement' related to the.same piece of.property, and were so connected that the mention of one of them would naturally suggest the- other. Neither could have been overlooked or forgotten in the settlement. Suppose the parties took both suits into consideration, and that they intended to settle both, what papers would have been appropriate to that end ? In one a judgment had been rendered therefore a. discharge of-record was necessary in order to clear the records of the judgment lien ; in -the other no judgment had been rendered, therefore a mere dismissal was all that was necessary to clear the records of the court. But the dismissal did not discharge the cause-of-action; therefore a third-party was necessary in order to extinguish that.
On examination, the papers actually executed on the occasion ar.e found to meet perfectly all these conditions, furnishing a strong circumstantial confirmation of the correctness of the' theory that both suits were included- in the settlement. The papers referred to are as follows :
THE ORDER TO ENTER SATISEACTION.
“Wm. Grumley. v. David S. Bigham, Wm. G. Webb, and Charles Pond. In the St. Louis Circuit Court.
“I acknowledge to have received full satisfaction of the judgment recovered in the above-entitled cause, and authorize the clerk of the court to enter satisfaction of said judgment on the records. ' '' .
(Signed) . William Gsumlex. .
“St. Louis, March 7, 1865.”
If the object of the parties had been to discharge this judg- - ment and nothing more, no other paper-than that copied above was necessary. Still the parties were not content with that, and'
THU ORDER TO DISMISS.
“ Wm. Grumley v. William G. Webb. In the St. Louis Circuit Court.
“ On the payment of the costs in this case by defendant, this suit is to be dismissed. (Signed) Sharp & Broadhead.
“ St. Louis, March 7, 1865.”
THE GENERAD DISCHARGE.
“"Received from Wm. G. Webb six thousand five hundred dollars, which is in full satisfaction of a judgment recovered by me against said Webb and David S. Bigham, in the St. Louis Circuit Court, and said sum is in fall satisfaction of all claims and demands I have or hold against said Bigham and Well, or either ox them,* up to this date.
(Signed) William Grumlev.
“St. Louis, March 7, 1865.”
In view of the facts already developed, is it possible to look at this array of papers and then come to the conclusion that the parties intended nothing more by them than the discharge of that single judgment? Yet that conclusion must be reached or the plaintiff’s case is lost. Eor if anything was intended beyond the cancellation of the judgment, then the general words of the receipt, “all claims and demands,” must be construed so as to take effect and carry out what was intended to be accomplished by them. As has already been remarked, if they are construed to include anything beyond the judgment, then they include every claim which the plaintiff may have had against the defendant at that time. It is, moreover, to be borne in mind that the papers were drawn up and executed under the advice of counsel among the foremost in the State. It is not to be supposed that they acted and advised without a legal reason for their conduct.
Besides all this, Grumley is not represented as a man destitute of sense. He knew all about the suits and the purpose of them. Did he sit down and read that general discharge, as the evidence shows he did, and that, too, under the eye of Col. Broadhead, and not have his attention arrested by that sweeping clause which declares that the $6,500 was paid and received as in full satisfaction of all claims and demands he then had or held against said Bigham and Webb, or either of them? .
Thus it appears that when the settlement was at its crisis, and upon the point of consummation, Broadhead and Grumley examined that most important paper which was to stand as enduring evidence of the scope and terms of the arrangement; that Grum-ley read it, and that Broadhead explained it to him. Broadhead knew that both suits were included in the arrangement — knew that the other party so understood it; and with all this knowledge he explained the receipt to his client. Did he give a full and true explanation according to his sworn statement of the understanding between him and Krum ? or did ,he suppress and keep from his client’s knowledge a material part of the transaction? There is nothing in the case to warrant a suspicion of concealment, and Col. Broadhead did not forget the second suit. It was present to his mind on that-very occasion, as is shown by his written order to dismiss. The order bears the same date with the other papers, and Col. Broadhead testifies that it “ looks like they [the three papers] all ought to go together;” and there is no evidence to show the contrary of that.
I have hitherto considered the case with reference to its undisputed facts, as these facts are explained and illustrated by the plaintiff’s testimony and that of his former oounsel. I now recur to the testimony on the part of the defendants.
Judge Krum was Webb’s counsel. He testifies that on the 7th of March, 1865, Webb and Grumley came to his office and announced to him that they had “ come to a settlement of all their difficulties,” or words to that effect; that it was then stated to him that Webb was to pay $6,500 and the costs of both suits. He was, as he testifies, requested to draw up the proper papers evidencing the settlement. Before doing so, as he testifies, he addressed the parties as follows: “Now, gentlemen, I under
Now, if these witnesses (Webb and Krum) are to be believed, their testimony establishes the fact that the second suit was included in the settlement, and that Grumley knew it. Why should they not be believed ? As regards what occurred in Krum’s office —and that is the' important matter in this connection — Grumley is the only witness that contradicts them. He sets up an alibi, and sustains it by his own oath. He swears that he was not in Krum’s office on the day mentioned, or on any day near that time. He is in direct conflict with Webb and Krum. The testimony on this point is irreconcilable. Who is to be believed ? If Grumley was not in Krum’s office on the 7th of March, 1865., then the testimony of the witnesses who affirm that he was, is to that extent á pure invention. The interested parties may be treated as balancing each other, but what shall be done with the testimony of Judge Krum? His statements, if credited, are decisive of the case. He is sustained by Webb and contradicted by Grumley.
Grumley denies that he was in Krum’s office as stated. He denies, too, that Broadhead had any authority to dismiss the second suit; and denies further, and over and over again, and
It is an entire mistake to suppose that there is any serious conflict between Judge Krum and Ool. Broadhead. They differ as to details, but agree perfectly as to the substance of the settlement— that it was understood to include both suits.
If the two suits were included, and Grumley so understood, the surrounding circumstances of the settlement cease to be of any moment; for they are important only as showing the understanding of the parties as to the scope of the settlement.
It may be remarked, however, that Col. Broadhead’s recollection of the details of the • transaction aré not distinct, and he admits his inability to explain some of the undoubted facts of
I have, to this point, considered the merits of the case apart from the merits of the contested settlement. That may deserve a brief consideration. When this cause was previously here, the record was quite barren of facts showing the state of the rent account between the plaintiff and defendants in the first suit. It was shown that a judgment had been rendered for $11,522.54, as for rent unaccounted for. The fair presumption was that the judgment, although excessive, was nevertheless somewhere in the viciuity of what was right. The evidence before us now dispels that illusion. The account is now presented and appears in the record in detail. Instead of showing an unpaid balance .of ■$>11,522.54, it shows a balance of only $4,089.19, thus evincing an error in the judgment of $7,433.85. The account, or the results of it, as the evidence shows, were exhibited to Grumley before the settlement, so that’ he acted with a knotvledge of the facts.
Then again, the second suit indicated a claim of considerable gravity; $7,000 was claimed, and the claim did not appear to be extravagant for a dozen houses. But it is now shown, and by one of the plaintiff’s witnesses (Rhodes), that the buildings sued for, in their then condition, were cheap and nearly worthless structures. • He values them at from $50 to $100 each, and he says there were twelve or fourteen of them. Suppose they were worth, in the aggregate,- $1,500 ; that’sum added to $4,089.19 makes $5,589.19, and this latter sum represents the total of the plaintiff’s claims, under both suits, as those claims stood on the day of the settlement —Bigham & Webb being credited their commissions, and no interest being computed on either side.
I deduce from the evidence, upon a careful review of it, the following summary of leading facts :
1. Col. Broadhead was the authorized and fully trusted representative of the plaintiff in his negotiations for a settlement. He was of the opinion, as he testifies, that Grumley would have settled for $3,000 had he advised it.
2. In these negotiations Broadhead came to a clear and definite understanding with the counsel of the opposite party that the settlement should include both suits. That was insisted upon and he yielded to the demand.
3. It therefore appears that the plaintiff’s counsel, Col. Broad-head, knew that the settlement was'understood to include the second as well as the first suit, and that it was understood by himself and the opposite party to be embraced in the receipt.
4. Thug, knowing and understanding the facts of the settlement, he expounded the receipt to his client. If the exposition was a fair one — and the contrary is not pretended — Grumley was thereby advised of the scope of the settlement and the import of the receipt as the same were understood by Broadhead and the opposite party. In a word, he was made to “know all about it,” and Broadhead testifies, as we have seen, that he supposed at the time that such was the fact.
5. This matter is not left to inference alone. Grumley’s knowledge is shown affirmatively by the testimony of Judge Krum. I find it to be true, as testified by this witness, that Grumley was in the witness’s office on the day of the settlement in company with Webb, and that he there recognized the settlement as including the subject-matter of both suits.
7. The settlement, assuming it to have embraced both suits, was still fair and reasonable. The evidence shows that the $6,500 paid by Webb was a full equivalent for the balance due on the rent account, and for the value of the houses sued for in the second suit.
Now the receipt, as we have seen, must be construed in the light of these facts, and, being so construed, the result is in no way doubtful. The narrow construction, limiting its effect to the specific judgment, must be abandoned, and the broader construction, which gives effect to its general terms, adopted. These terms are comprehensive enough to embrace and discharge the second suit, and all causes of action then existing in favor of the plaintiff against the defendant, whether joint or several, and that is their effect. .
Erom this it follows that the judgment of the court below, which was in favor of the plaintiff, must be reversed and the petition dismissed. I recommend that disposition of the case.
Judge Bliss concurs. Judge Wagner dissents.
The capitals and italics are those of the court. [Hep.'
Concurrence Opinion
concurring.
I concur in the opinion of Judge Currier. The case has been remanded and re-tried upon an amended answer, and upon .the principles settled when it was formerly before us. The record is much fuller than before, developing new and material facts ; and whatever, then, the contradiction and doubt as to. the intention of the parties in using the general language of the receipt, that intention is now made clear; and it is apparent that both Mr. Grumley and his attorney and Mr. Webb and his attorney understood the receipt alike, and, though the judgment was the chief matter in controversy, that they intended to cover by it not only
■ • A question of law not before considered is now insisted on, to-wit: that the right of Grumley to the renewed lease and to the property upon the leasehold premises could not be surrendered by parol; or rather, that the scope of the-reeeipt cannot be extended -by parol so as to affect the plaintiff ’s 'claim to the leasehold. Had this point, when before presented;'been considered and sustained, it would"have dispensed :with any inquiry into the understanding of the parties. • ' : .
The statute of frauds' applies equally to legal and equitable estates in lUnds. i-As-a rule,’neither can'be “ assigned, granted, or surrendered;” nor can valid contracts be made for their assignment, -grant, or surrender, except by note in writing. But if there were no exception to-'this rule, the statute could be made a potent engine of fraud. Hence the clear and marked exception that when the parol agreement has been performed in part, by .taking- possession and paying the purchase money, the agreement may be enforced and the title wrung from the-vendor,' notwithstanding the statute. • To refuse to compel him to deed would work a fraud, and-the letter of the act yields to the spirit of the law, and he is forbidden to-set it up. So in regard-to-the sale or the surrender of'an equity. . An unexecuted agreement may not be enforced, but one who sells his equitable • interest in land, receives- the consideration, and yields-possession, will 'not-be permitted to say afterward that the assignment was not in writing; or,- if the holder, of the equity surrenders to him who' has the legal
So a deed with a separate condition- of defeasance is: but a mortgage, and the mortgagor holds an equity of redemption ; and yet by canceling the defeasance, being unrecorded," this equity may be surrendered; given up to the holder of the paper and record title' without any writing whatever, and the equity will be discharged. (Harris v. Phillips Academy, 12 Mass. 456" court="Mass." date_filed="1815-10-15" href="https://app.midpage.ai/document/harrison-v-trustees-of-phillips-academy-6404382?utm_source=webapp" opinion_id="6404382">12 Mass. 456 ; Trull v. Skinner, 17 Pick. 218.) I might give other illustrations of the unsoundness of the claim,- that because' certain' parol contracts or transactions are within the statutej therefore they are void and courts'will wholly disregard them. They are not necessarily void. An executed parol agreement is valid; “if it is fulfilled by the návties,. it is as good as any other contract” (5 Litt. 98), and even if only partly performed, equity in a proper case will enforce it;
But in this case we need not go as far as courts uniformly go. We need not say that a verbal contract to' sell or surrender the plaintiff’s claim, if founded- upon- a good consideration, wóuld be specifically enforced, if it should be found-necessary for'a defendant to appeal-to a court for that-purpose-; but'-it" seems very clear to me -that the plaintiff himself coiild not Coihe into court for its-equitable aid, as though na such "surrender had been made. The plaintiff had an equitable, unadjusted claim"upon'the renewal of-'a certain" leasehold. - He prosecútéd’a-claim'for the improvements ' upon the leasehold -propertysubsequently’ the parties settle their-controversies, including this suit -and all matters pertaining to the lease, and the plaintiff receives the money demanded. ' Everything was done that could be done in éxé'cútion of the settlement; the money was paid, a receipt was given, ’the
In Campbell v. Johnson, 44 Mo. 247" court="Mo." date_filed="1869-07-15" href="https://app.midpage.ai/document/campbell-v-johnson-8002612?utm_source=webapp" opinion_id="8002612">44 Mo. 247, the doctrine of estoppel was applied to a similar state of facts. A purchaser of land, complaining of the insufficiency of the deed, brought suit for the purchase money. It was paid back to her and a receipt taken. Afterward she brought suit for the land itself, and was held to be estopped by her previous settlement and receipt.
I have looked at all the cases cited, and have searched for others, but have found none where a judgment to enforce an equity was given in the face of a receipt and discharge, an accord and satisfaction, the discharge not being in writing; although in some, where the court found that there was no such discharge in fact, dicta are thrown out in aid of the finding, as to what might have been its legal effect.
If this were a proceeding for specific performance of a parol agreement, we should require evidence that the character of the possession, if rightful without such agreement, was changed,-and that the purchaser held under the seller; but in this case no such showing is necessary, for these reasons : first, the claim supposes the possession wrongful; it was certainly adverse, and acquiescence in it has a very different significance from that which it would have if it were rightful or held under the other party; and, second, one may be estopped in equity by transactions between him and his opponent from prosecuting one kind of claim, although such transactions might not suffice to lay a foundation for affirmative relief on his behalf.
Dissenting Opinion
dissenting.
When this case was here on a former occasion (44 Mo. 444" court="Mo." date_filed="1869-10-15" href="https://app.midpage.ai/document/grumley-v-webb-8002663?utm_source=webapp" opinion_id="8002663">44 Mo. 444) it was decided that Webb held the property in trust, that he possessed the dry legal title, but that the equitable interest was in Grumley, and that the latter was entitled to have the leasehold interest assigned to him, and also to have an account of the rents and profits.
It was further held that the compromise entered into between the parties, by which Grumley took and received $6,500 for the judgment which he had obtained against Webb for $11,522.54, did not include a second action which he still had pending against Webb, and was therefore no bar to the prosecution of this suit.
When the case was remanded, the court below rendered judgment in conformity with the opinion of this court, and appointed a commissioner to take an account, who, after hearing the proofs, stated the amount due the plaintiff, and his report was confirmed.
The defendant has now appealed, and it is sought to draw a different conclusion from the facts from what was arrived at by this court upon the former hearing. The decree declaring Webb a trustee and holding the title- for the benefit of Grumley is not attempted to be disturbed.
From a careful examination of the evidence, I have been wholly unable to find any material difference between the evi-
. Bi'gham, who was employed by Webb-as his agent to try and effect a settlement .with Grumley, shows clearly that the judgment alone was settled. He- says that he was employed by Webb, to settle the judgment, and.- nothing else. He offered Grumley several .times either $6,000 o.r $6,500 for the judgment; understood that it included everything, and that the,-, buildings were to belong to Webb ; but don’t know that he said anything to Grum-ley as to whom the buildings should belong to, and he knew of no-other difficulty between the parties but the judgment.
Grumley swears positively that no one ever spoke to him about settling, anything but the judgment for $11,522.54, and that he received the $6,500 for that, and for that alone.
The testimony of Broadhead shows conclusively, to my mind tha-t nothing but the judgment was settled, though he states during the course of his examination that he understood, or had an impression, that .everything was settled. He says that both Krum and himself thought that the judgment was for too much, and he and Krum negotiated for a long time for its settlement. Krum .insisted that the error should reduce the judgment to $5,000, while, he insisted that.it should not reduce it to less than .$7,000, perhaps not less than $8,000 or $9,000, and finally they.agreed on $6,500. ..Now what was this .agreement for? Why, most plainly, for that about which they had been negotiating — the judgment.
Broadhead testifies that he closed the. settlement with Krum. Krum testifies that Broadhead. is mistaken, and that they did not close the settlement. He says .he .drew up the papers in'accordance with an agreement which Webb and Grumley had made in his presence, and that he then and there drew up and read to the parties the three papers, “ or rather two of them,” and that he
Such is the statement of Broadhead and Grumley, while Krum says that Webb .and Grumley made the agreement in his office, and he expressly asked them if the settlement was to include all matters in controversy between them, and they said that it was.
The evidence is contradictory, but the conclusion seems to me irresistibly plain that Grumley never agreed to nor contemplated settling the $7,000 suit pending in the court at the time.-
The judgment for upwards of $11,000 was obviously for too much. It was a lien on Webb’s real estate, and he could not'use
The third paper prepared by Krum, dismissing the suit, was not presented to him, nor did he know anything about it, but it was signed on the same day by his attorneys. There is something in this transaction that goes entirely to rebut and dispel the presumption that Grumley ever intended to compromise' the $7,000 suit, or that he assented to any disposition being made of it. While Broadhead seemed to think that everything was settled, he clearly states that nothing was said about anything but the judgment. He had no authority from Grumley to settle the suit, and consequently Grumley would not be bound by any arrangement he made; for it is settled law that an attorney employed in the usual way to conduct a suit has in general no authority to enter into a compromise without the sanction, expressed or implied, of his client. (North Mo. R.R. Co. v. Stephens, 86 Mo. 153 ; 1 Pars. Cont. 117.) But the simple dismissal would amount to nothing, and would not preclude another suit being instituted for the same cause.
Some stress is laid on the fact that Grumley went to Memphis, and was gone more than a year,'and paid no attention to the suit, and thence the inference is sought to be drawn that he knew it was abandoned. But this presumption or inference will not hold good. In the crowded state of the docket in the St. Louis
Besides, Grumley made repeated inquiries of his counsel concerning the suit. The fact appears to be that Broadhead had no confidence in the suit. He was satisfied that it was not maintainable, and therefore was willing to abandon it. He might have been right in his views of the law, but that should not operate to Grumley’s prejudice.
While I think it is clear that Grumley never intended to compromise, and did not compromise, the $7,000 suit, the faet is patent that there is some conflict in the evidence. Now the receipt specifies that the money was received in full satisfaction of the judgment. Is it not natural to conclude that if the pending suit was intended to be included, it would also have been specified in the writing ? Both matters were of importance and covered distinct suits, and it is incomprehensible that if both were expressly settled, one should have been specifically design nated and the other left entirely out. It was clear that the parties’ minds were directed to the judgment and that only.
If the pending suit as well as the judgment had been presented to the minds of the parties, it is natural to suppose that the language used would have given some indication of it. And this would be especially the case when we consider that the writing was drawn up by Judge Krum, who has spent a long life in the profession.
When this subject was considered by the court when the case was here beEore, we held that the receipt given in full satisfaction of the judgment, and specifying also in full of “ all claims and demands,” would not bar the prosecution of this suit unless it were shown to have been intended by the parties to include the $7,000 suit; and its the evidence was contradictory, we construed it according to its legal import. The authorities were examined, and the rule deduced as the settled doctrine was, that language, however general in its form, when used in connection with a par
Tbe case is essentially the same as it was when it was here before, and ought not to be again re-examined; for where a case has been decided by this court, and again comes here by appeal or writ of error, only such questions will be. noticed as were not determined in the previous decision. Whatever was passed upon will be deemed res adjudicala and no longer open to dispute. (Overal v. Ellis, 88 Mo. 209 ; Roberts v. Cooper, 20 How. 467" court="SCOTUS" date_filed="1858-05-10" href="https://app.midpage.ai/document/roberts-v-cooper-87169?utm_source=webapp" opinion_id="87169">20 How. 467.)
There is another question to be considered, and that is the statute of frauds. Although Webb procured the lease in his own name, yet the equitable title is in Grumley. Has Grumley in any way ever parted with his equitable interest in this new lease ?
T think he could only part with it in the way of a voluntary transfer by a writing in conformity with the statute. Grumley’s estate in the new lease is created “ by operation of law,” and it is now sought to divest him of it not in the same way, but by voluntary conveyance in the way of bargain and sale.
•' The doctrine is that in cases of voluntary conveyance of an interest'in land, whether legal or equitable, parol testimony is inadmissible. This is a case of divesting an equity; it is not attempted to show that the equitable estate never did vest, but that after it had been vested a year and a half, the owner thereof voluntarily sold and parted with it.
The statute of frauds provides that “no leases, estates, interests, either of freehold or term of years, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall at any time hereafter be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents lawfully authorized by writing, or by operation of law.” (Wagn. Stat. 65, § 2.)
• This section extends to and embraces all interests in land, equitable as well as legal. This construction is well settled. (Browne on Frauds, § 229.)
The only case relied on to evade the statute, and turn the cause in favor of the defendant Webb, is Hughes v. Moore, 7
To each of these counts defendant Hughes pleaded several pleas; among others, that neither the promise nor any memorandum thereof w.as made in writing. To this plea the plaintiff demurred, and the court below sustained the demurrer. The unanimous opinion of the Supreme Court was delivered by Chief Justice Marshall. As to the second count he says : “ The correctness of this decision depends entirely on the application of the statute of frauds to the contract stated in the declaration. Cleon Moore is averred to have been the proprietor of a plat and: certificate of survey on which Hughes & Darby obtained a patent by using his name without authority. This tortious act did not-, divest Moore of his equitable title. The land in equity was his. Did he part with his title by the contract stated in the declaration.?: The answer must, in the opinion of the whole court, be in the> affirmative. He agreed to accept of the said compensation in. full of all claims and demands for the said land, and. for the-
On the'third count the court divided, but tbe majority were of tbe opinion that “ a compensation for the loss of tbe title to tbe land must-be understood to be a compensation for tbe land itself, and 'that the receipt of this money'by Cleon Moore would not only have barred an action for damages, but a suit in equity for tbe title.” Tbe judge then goes on-to remark that “if this opinion be correct, then tbe contract is substantially for tbe sale of land, and to be valid ought to have been in writing.”
But in commenting upon tbe fourth count it is said: “It seems to tbe court that this compensation was in lieu of tbe patent itself, and must have-been intended to extinguish bis right to tbe patent.” There-was no doubt in tbe minds of the court as to the sale of the équitable interest being within tbe statute of frauds. This principle was broadly decided, and is given by Judge Curtis in tbe head-note, in bis edition’ of tbe report, as the only principle decided. Tbe majority of tbe court evidently hesitated in coming to tbe opinion that tbe compensation was to be considered in lieu of tbe patent, and that it barred a suit for ' tbe land. The language used is extremely cautious, and while tbe case is often cited as a leading authority to maintain tbe proposition that a promise to pay a sum of money in consideration of tbe release of an equitable titlé is within tbe statute of frauds, I cannot find that it has ever been followed in any other case for tbe further purpose of extinguishing title upon parol agreement and compensation.
In’ Millard v. Hathaway, 27 Cal. 119" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/millard-v-hathaway-5435676?utm_source=webapp" opinion_id="5435676">27 Cal. 119, a case entirely parallel with tbe one at bar came up for adjudication.' There tbe bolder of tbe equitable interest sued tbe party having tbe legal title for a conveyance. -The latter'-in'.bis defense set'up a settlement, a refunding of tbe money and a parol lease. Tbe plaintiff’s estate,
“The. court has fo.und against the allegation directly, and when specially moved to .amend its conclusions of fact by finding that the. release was..at least proved by parol, the motion was denied. .We have attentively examined the parol proofs as they stand relative to the question-. Parol evidence was freely introduced on both sides, and we are satisfied that the preponderance, is with . the. result that the coúrt arrived at. But if the court refused to find the release .pr discharge alleged, on the ground that the fact could be proved by written .evidence.-pnly, as is claimed by the .appellants, still-we consider that the court did not. jn that particular mistake the law.. As already remarked, the defense went upon the supposition that the plaintiff had, originally an equitable estate in the land, but maintained.,that, the estate had become extinct by release or surrender to the holder of the legal ti.tle. A .release is not by. act.,or operation of law,-but by the .act of the party releasing, .and therefore..the act can be proved only by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the .same, or by his lawful agent thereunto authorized by writing.”
. The Supreme Court of Pennsylvania says -that no. difference in principle can exist in the mode of transferring a legal and an equitable, estate. (Cravener v. Bowser, .4 Penn. St. 261; 56 Penn. St, 132, 140.)
In North Carolina, Ruffin, C. J., says:. “In all contracts concerning the sale of an interest in lands, the statute of frauds requires a writing .signed, by .the par.ty sought, to be charged.” (Simms v. Killiam, 12. Ired. 252.)
So in a case, in Ohio, the court says : .“First, this is an agree
In Goucher v. Martin, 9 Watts, 106" court="Pa." date_filed="1839-09-15" href="https://app.midpage.ai/document/goucher-v-martin-6312130?utm_source=webapp" opinion_id="6312130">9 Watts, 106, the court tersely announces the doctrine and declares that “it is a general rule that no estate or interest in land shall pass hut by deed, or some instrument in writing, signed by the-parties ; and it is immaterial whether the interest be legal or equitable, as an equitable interest is an interest in land which comes within the words and spirit of the statute of frauds. * * * The very object of the statute is to prevent the divestiture of a title to real estate, equitable or legal, by the introduction of loose and intermediate proof of a contract which the law requires should be made in the most solemn form.”
In Gratz v. Gratz, 4 Rawle, 411" court="Pa." date_filed="1834-02-21" href="https://app.midpage.ai/document/gratz-v-gratz-6314543?utm_source=webapp" opinion_id="6314543">4 Rawle, 411, Kennedy, J., speaking for the court, says : “ The terms of the act against fraud I think are sufficient to embrace equitable as well as legal interests in lands. The words are ‘ all leases, estates, interests of freehold, or term of years, or any uncertain interest of, in or out of any messuages, manors, lands, tenements, or hereditaments,’ etc. * * * The term ‘ interests ’ being here used without any other words to qualify or restrain its general and most extensive signification, I am unable to discover any good reason why it should not be considered and held to extend to equitable interests in lands as well as legal.”
In like manner the Supreme Court in Massachusetts hold that “it is well settled that equitable as well as legal interests in land are embraced within the statute of frauds.” (Richards v. Richards, 9 Gray, 318.) To the same effect is the case of Smith v. Burnham, 3 Sumner, 435; and also Toppin v. Lumas, 30 Eng. Law & Eq. 427.
' The authorities abundantly and conclusively show that all interests in land, whether equitable or legal, are clearly within the statute of frauds, and that neither estate will pass by parol,
Rehearing
On Motion for Rehearing.
delivered the opinion of the court;
The plaintiff moves for á rehearing, first, upon tne ground that the court has mistaken the record in supposing that it differed. from the former one, and, argumentatively, that we' are bound by the former finding upon the facts.
We have distinctly recognized the former opinion upon' questions of law as governing the law of the case. ■ As the record stands, we could scarcely go further. A general mandate has gone down to try the whole case de novo upon the principles so settled, and the record of the trial has come back increased over the old one by hundreds of pages. If we are bound by a former finding of the facts, why a new trial? Why was not a transfer of Grumley’s equity adjudged, and only an account of the rents directed ? It is folly to say that the facts are concluded ; it is our duty again to consider them, and especially to ascertain whether the new features of the evidence throw any light upon the case. If the present record were the same as the old one, the former finding should control us, unless “injustice to the rights of the parties would be done^by adhering to the first opinion” (Chamber’s Adm’r v. Smith’s Adm’r, 30 Mo. 156" court="Mo." date_filed="1860-03-15" href="https://app.midpage.ai/document/chambers-administrator-v-smiths-administrator-8000804?utm_source=webapp" opinion_id="8000804">30 Mo. 156), but it is not the same.
I have looked with increased anxiety to see what the plaintiff meant by releasing not only Bigham & Webb, but also Webb, against whom, individually, -he was pursuing a separate claim, When the case was formerly here, I felt great doubt upon this vital point. The evidence was conflicting; there was difference of opinion, and I yielded my doubts to what then seemed to be the equities of the case. But the evidence now makes it clear that the $6,500 was a fair equivalent for the claims then in litigation ; and there is no doubt whatever that Webb paid that sum with the full understanding that it satisfied every demand.
Mr. Krum “insisted” upon including -everything in the settlement, and Mr. Broadhead yielded to it. This fact is new and important, and rests upon the undisputed testimony of Mr. Broad-head. Webb understood that everything was settled; his counsel so understood it; Grrumley’s counsel so understood it, and, so
Second. A new and further ground is now urged in support of tbe motion, that if tbe settlement covered tbe suit then pending for tbe value of tbe buildings, it did not embrace tbe plaintiff’s claim upon tbe leasehold. In other words, Mr. Grumley’s counsel present him in tbe attitude of prosecuting a claim to recover tbe value of tbe improvements upon tbe premises, consisting entirely of buildings; and having succeeded in that, now seeking to recover back tbe buildings themselves, in their improved condition, in a suit for tbe leasehold. Tbe remarkable prosperity of tbe city, with tbe repairs and fitting up of tbe buildings, may have so enhanced tbe value of tbe leasehold as to make it now an object of pursuit. But tbe claim will not avail him, both because of its inherent vice, and because tbe whole matter of tbe lease was covered by tbe settlement.
In tbe decision of this cause it was held that tbe general words of tbe receipt were broad enough, unless otherwise understood, to embrace and discharge not only tbe second suit, but “ all causes of action then existing in favor of tbe plaintiff against tbe defend-
. But I will not pursue the subject further. . The sweeping ..words ..of. the receipt harmonize perfectly with the sweeping character of. the ,settlement, and it is perfectly evident, that the parties intended a settlement which should .embrace everything, and leave nothing, respecting the leasehold for future adjustment. To disturb such a settlement at this late day, in the view of a majority of .the court, would be to., take a step which there is nothing in the reeord to justify, ...
With the concurrence of Judge Curriér, the motion is overruled. Judge Wagner dissents.
dissenting.
. . A motion far & rehearing was filed , in this cas.e and has been overruled ,by. a majority of the court.. As reasons for that action
I have compared the testimony of Broadhead and Krum on all the material parts, as taken on both trials, and here insert the same in parallel columns.
TESTIMONY OE BROADHEAD ON EIRST TRIAL.
“Was attorney for Grumley in the $7,000 against Webb, and also in the suit of Grumley v. JBigham, Webb & Pond. There was judgment in the last suit for $11,600. I was satisfied the judgment was too large.
“ After the judgment was obtained there was a negotiation for its settlement between myself and Judge Krum,
TESTIMONY OE BROADHEAD ON SECOND TRIAL.
“Recollect the suit of Grumley v. Bigham, Webb & Pond, in which the judgment of $11,000 was recovered. I was counsel for Grumley. Was his counsel also in the $7,000 suit. Recollect the negotiations for settlement. Negotiations were entered into to settle the case between Judge Krum and myself.
“ The negotiation was with regard to this judgment of $11,500. This $7,000 suit against Webb alone did not engage my attention much, for I had pretty much abandoned all hope of recovering the judgment obtained. The settlement was finally made at my office, but the negotiations were had at Krum’s. I signed the order of dismissal of the $7,000 suit. Grumley.signed the other two papers relating to the judgment.
“I got these papers (the receipts) from Judge Krum. He drew them up in conformity with agreements which he and I had. Judge Krum gave me a check for $6,500. My understanding was that this settled the whole suit between the parties. Grumley gave me no special authority to dismiss the $7,000 suit. Grumley never gave me any.authority to dismiss that $7,000 suit. I dismissed it on my own responsibility. I had no authority to settle that suit. My understanding was that it was included in the settlement. My understanding was that the settlement included all pending matters of controversy between the parties. Think that Grumley signed the papers at my office.
“ Cannot recollect that Judge Krum came to my office with Grumley with the papers, nor can I say that Grumley was present when I got the check from Judge Krum. I cannot say that I took out my fees in any other cases than the one where we had judgment. Grum-ley went, shortly after the settlement, to Memphis, in the beginning of 1865, and wrote to me repeatedly to go on with this $7,000 suit. He spoke to me when he came back here afterward about this $7,000 suit, and it seemed to be his idea that the suit was still pending. I do not recollect ever speaking
“I saw the judgment was too large. *******
“I think we were entitled to between $8,000 and $9,000. * * *
Judge Krum thought we were entitled to about $5,000. The $5,000 and $8,000 were the amounts that divided us. The matter was finally adjusted for $6,500. I called on Grumley at Third and Washington avenue on the morning of the settlement. I think it was after Judge Krum and myself had agreed upon the $6,500. I am not positive whether he had agreed or whether I saw him there to get him to agree to it. At any rate I had made up my mind to settle at $6,600. Judge Krum and myself, I think, had come together at those figures. The most distinct matter that 1 recollect of in regard to the settlement is the fact that I settled the amount with Grumley in my office and paid him over the money.
“ I settled with Grumley at my office. None present but myself and himself; Mr. Sharp was in the office and maybe Mr. Haeussler was in the office. Trec-ollect distinctly of calling to see Grum-ley on Third and "Washington avenue, but what about I do not recollect now; I think it was to urge him to make a settlement.
“Do not recollect where I settled with Judge Krum, but my impression is that Judge Krum gave me the check at his office. I have been thinking about that a good deal, and that is my best impression. There was no one present but him and myself. That 1 am very positive about.
“I am quite sure Grumley'was not present when Judge Krum and myself had any talk about this matter. Do not recollect whether the receipt was given first or the check, or whether they were both given at the same time.
“Grumley signed the receipt in my | office. I am quite sure no one was
“Saw Grumley at Third and Washington avenue, where he was clerking, on the morning of the settlement, and made an appointment with him to meet me. He came to my office by appointment to settle with me. I am quite sure there was no one with Grumley when he came to settle with me. I don’t think Grumley was present when I got the papers from Judge Krum. Grumley was not present at any time when Webb or Krum was present.
“ When I saw Grumley the day of the settlement, at Third and Washington avenue, I did not yet have the papers. I got them from Judge Krum afterward.
“Grumley never saw the order of dismissal of the $7,000 suit. I am sure he did not.” present when Grumley and I had any settlement about this matter.
“Do not recollect whether Judge Krum gave me the order for dismissal at the same time he gave me the other papers. I do not think Grumley ever saw the order of dismissal.
“Do not recollect whether I saw Grumley at his stole the day of the settlement. Recollect I saw him at the clothing store, but can’t say whether the settlement was made that day or the day after. My best recollection is that, it was made the same day. Grum-ley came to my office, I believe, the same day I saw him in his store, but can’t say how he got the information that I had the money for him. I went to see Grumley that day, because, although he had authorized me to settle the matter, I would not take the responsibility of settling for any man without his consent, although Judge Krum and myself had agreed upon the settlement. In what manner exactly the papers passed through my hands, I don’t know. I saw Judge Krum repeatedly about this matter. Judge Krum wanted the settlement should include Ijoth cases. The main matter in my mind was the judgment. Judge Krum wanted to include the other suit. I had not much faith in the other suit. Don’t know wh.ether the settlement was to include the other suit, from the fact that the other suit was to be dismissed. I inferred that it was to be dismissed by agreement. I don’t think I was authorized to settle anything but the judgment. Don’t recollect that I ever told Grum-ley that the suit .was dismissed at or about the time of the settlement. My impression, was that Grumley knew about it. I have no distinct recollection of telling him about it until his return from Memphis. * * * My impression is that I charged Grumley a fee only in the case in which judgment had
“ My impression about the matter is that Judge Krum and I bad agreed on $6,500, and I went to Grumley to see whether he would agree to it, and then the papers were drawn up. That is my impression merely. I got the papers; got them from Judge Krum, I think; think Judge Krum gave me the check. I have no recollection of any one being present when Judge Krum and I had anything to do with this^case. No one was with Grumley when he came to my office on the day of the settlement. I don’t know of Grumley’s ever taking the matter into his own hands at all. If he did, I did not know it. I don’t recollect of Judge Krum ever telling me that he had settled with Grumley. If there was any negotiation between the parties, I never heard of it.. Don’t know that Grumley was aware that 1 was settling the $7,000 suit, and that Webb was to pay the costs. Had I told Grumley to take $3,000 for his judgment, I am satisfied he would'have done it. The judgment is the only thing Ire-collect talking to Grumley about. I can not give any satisfactory explanation of how I came to settle the $7,000 suit.”
I will now in like manner refer to the testimony of Krum:
TESTIMONY OS’ KRUM ON FIRST TRIAL.
“ I was present when the terms of the settlement which led to the execution of these papers were discussed. Both parties were present. I drew these papers while Webb and Grumley were sitting by my table in my office.
“Webb remarked something to this effect: 1 Well 1 we have now come to a settlement; ’ and stated the amount that he agreed to pay, and that was $6,500. He was to pay $6,500 to settle the whole controversy, in respect to the whole of those leasehold premises.
TESTIMONY ON KRUM ON SECOND TRIAL.
“Know-the parties. Was counsel for Webb in a suit brought by Grum-ley against Bigham, Webb & Pond; and also in another suit against W ebb alone. I attended personally to both suits.
“ Know of attempts to compromise after decree of $11,522. Webb authorized me to make a settlement of the whole matter in regard to the leasehold premises. I attempted to do that; consulted Mr. Broadhead. Mr. Broadhead was attorney for Grum-
“Mr. Broadhead is mistaken, as he and I did not close the controversy. At the time of that settlement, the only matters of controversy were the matters involved in the two suits, that is to say, the judgment of $11,522.54, and the pending $7,000 suit; but I understood that this was a settlement of all controversies between the parties. I drew up the two papers signed by Grumley, and the one signed by Sharp & Broadhead. Sharp & Broad-head signed the order of dismissal. I may have had them sign it because I may have thought the clerk of the court ijjould not know Gruniley’s signature. The clerk of the court would have known Grumley’s signature to that as well as to the paper directing the entry of satisfaction of the judgment. I do not know why I did not have Grumley himself sign that order directing the dismissal of the $7,000 suit. The $7,000 suit was included in that settlement, and was to be dismissed. That I am positive of; as sure of it as of anything.” iey. We did not arrive at any adjustment.
“ One morning, after I had had my last interview with Mr. Broadhead, Webb and Grumley came to my office. They took a seat near my table and had a conversation, and then turned round and stated the object of their call.
“Webb said: ‘We have at last come to a settlement of all our difficulties.’
“ Webb stated the amount he was to pay, and one of the two said that Webb was to pay the costs of both suits, and they desired me to draw up the necessary papers.. As I was about to do so, I said: ‘Now, gentlemen, I understand that this is a settlement of the whole controversy about this property between you,’ and I understood them to assent to it.
“ When they assented, I then turned round to my desk and wrote these papers, or rather two of them."
[Papers here read in evidence and set out in hoee verba.]
“I allude to the one, the satisfaction in discharge of all claims, dated March 7, 1865, and the one acknowledging satisfaction of the judgment. I have marked the three papers A, B and C. I read A and B -in the presence of both parties. * * * I won’t undertake to say whether I read this at the same time — that is, the order of dismissal. Perhaps I did. If I wrote that there I read that to them also. Think I wrote that at my office. After I had read these papers, Mr. Webb handgd me his check for the amount, $6,500, and requested me to see what the costs would be. That was in the presence of Grum-ley. These two papers were signed and given to Grumley. Grumley and I,then went over to Broadhead’s office. Mt. Broadhead had requested me'to have the funds pass thrdhgh his hands. The order of dismissal was signed at the same time
“It seems to me I had seen Webb and Grumley together in regard to this settlement, previous to the time above stated, when they came to my office. I might have got the impression from the fact that I had been informed that they had been talking together.
“ I drew up the three papers A, B and C in my office; think I read them to Grumley. I think I am certain about that. My conviction is very clear upon that point.
“I am quite positive that I read the three papers to Grumley there at my office. I think I did. The paper marked 0 is signed by the firm- name of Sharp & Broadhead. The signature was written by Mr. Broadhead. I bad Mr. Broadhead sign that order of dismissal because I thought the clerk of the court might not know Grumley’s signature if he signed it; therefore I had it signed by Sharp & Broadhead, so that the clerk of the court would dismiss the $7,000 suit. I suppose the clerk of the court would have known Grumley’s signature to that as well as to the other. I can give no.,reason' other than the one just given why I had Grumley sign two of these papers, and Sharp & Broadhead the order of dismissal.”
The above constitutes the material portions of the testimony of both Broadhead and Krum, taken at the first and second trials. An examination of it shows most conclusively that there is really no difference. In substance and sense it is precisely the same. Some paragraphs are changed so as to stand in different order
Tbe transfer of possession, which is necessary to- take it out of •the statute, is wholly wanting. Tbe mere payment of tbe purchase money does not take tbe case out of tbe operation of the statute, and there is not one particle of evidence to show that Grumley ever delivered possession to Webb in pursuance of this pretended agreement. Webb’s possession was wrongful, and Grumley never acquiesced in it. Tbe record is entirely barren to support tbe proposition of law above enunciated.
Again, if we admit'for tbe sake of tbe argument - that the .$7,000 suit was compromised, it in nowise bars Grumley from recovering in this suit. That suit and tbe present one are totally different as respects tbe subject-matter. That, was purely for personalty, this is for realty. Tbe $7,000 suit set up a right in Grumley to remove the buildings before January 1, 1864, and alleged that Webb refused to allow their removal after January 1, 1864, thereby damaging him $7,000; and a demurrer bad-been sustained to tbe petition. The action was founded on the supposition that tbe buildings were mere personal property, and Webb’s refusal to allow them to be removed amounted to a conversion. Nothing was said about the interest in tbe leasehold, nor was it thought of at the time. The sale of some old buildings was never intended to carry with it a valuable interest in lands. Tbe buildings are not co-extensive with tbe lease, but are simply incident to it, and tbe sale or conversion of tbe buildings would not convey tbe interest in the lease. This suit is now for the equitable interest in tbe lease, and it bas no identity with tbe $7,000 suit, which it is alleged was settled, but which I wholly deny.
My conclusion on tbe whole case is that tbe decision was wrong, and that a rehearing should be granted.
I have examined this case with care, and have already fully expressed my views upon it. I have now re-examined it, but find no occasion to recall, modify or explain the views and positions previously taken, or for a further prolongation of the general discussion. Justice to the court and the cause, however, demands that some notice should be taken of the remarkable dissenting opinion filed under this motion.
That opinion starts out with the proposition that the disputed facts “mainly hinge upon the testimony of two witnesses, Krum and Broadhead.” It then undertakes to set out and display the testimony of these witnesses in extenso in “ all its material parts.” It is the grave inaccuracy of these recitals of the evidence that chiefly requires attention.
The scope of the settlement and Grumley’s knowledge of it were the vital facts submitted for investigation. Was the settlement sweeping, including all causes of difference ? Did Grumley know of its real character ? These were the questions to be considered and decided. Now, the dissenting opinion, instead of stating, omits and totally ignores the - most material parts of Broadhead’s testimony that bears directly upon these issues. I think the same omissions will be found in the statement and brief of plaintiff’s counsel.
Broadhead not only testified that Krum “wanted” to include the second suit, and that he “understood” it to be included, but he says, with emphasis, that the second suit was in fact included, and that Krum insisted upon having it so. He says: “Judge Krum insisted upon a settlement of the whole thing. I am CONFIDENT OF THAT. I YIELDED TO THAT.” Again he testifies that he explained to Grumley the receipt evidencing this sweeping settlement, reducing it to a moral certainty that Grumley was apprised of its true character. All this evidence is dropped out of what is represented to be “ all the material parts ” of Broad-head’s testimony. It would have been quite as accurate to have presented the part left out, and then held that up as being all that was material. It is not the number of words a witness uses
In the decision of this cause, a majority of the court deduced from the evidence the following propositions or conclusions of fact, to-wit:
“ 1. Col. Broadhead was the authorized and fully trusted representative of the plaintiff in his negotiations for a settlement. He was of the opinion, as he testifies, that Grumley would have settled for $3,000 had he advised it.
“ 2- In these negotiations Broadhead came to a clear and definite understanding with the counsel of the opposite party that the settlement should include both suits. That was insisted upon ■and he yielded to the demand.
“ 3. It therefore appears that the plaintiff’s counsel, Col. Broad-head, knew that the settlement was understood to include the second as well as the first suit, and that it was understood by himself and the opposite party to be embraced in the receipt.
“4. Thus knowing and understanding the facts of the settlement, he expounded the receipt to his client. If the exposition was a fair one — and the contrary is not pretended — Grumley was thereby advised of the scope of the settlement and the import of the receipt as the same were understood by Broadhead and the opposite party. In a word, he was made to “know all about it,” and Broadhead testifies, as we have seen, that he supposed at the time that such was the fact. '
“5. This matter is not left to inference alone. Grumley’s knowledge is shown affirmatively by the testimony of Judge Krum. I find it to be true, as testified by this witness, that Grumley was in the witness’s office on the day of the settlement in company with Webb, and that he there recognized the settlement as including the subject-matter of both suits.
“6. Grumley’s subsequent conduct accords with this view, and is inconsistent with the notion that he believed the second suit was left to be fought out in the courts. He gave it no attention thenceforward for nearly a year and a half, or at least not enough attention, according to his own swearing, to ascertain that it had*615 been dismissed, untill it had been out of court nearly eighteen' months.
‘ ‘ 7. The settlement, assuming it to have embraced both suits, was still fair and reasonable. The evidence shows that the $6,500 paid by Webb was a full equivalent for the balance due on the rent account, and for the value of the houses sued for in the second suit. ”
It has been insisted that Broadhead’s authority to negotiate, mentioned in the first'.proposition, was limited to the judgment, and an effort has been made to explain away the force of the facts recited in the sixth proposition. Otherwise than this, no definite and tangible objection has been taken to the soundness of any one of the propositions above recited. All else is indefinite, vague, uncertain — a violent general assault, without attacking anything specific except personal character.
The second, third and fourth propositions rest mainly upon the testimony of Col. Broadhead. That testimony is fully set out in the record, but not a word of it'can be found in the recitals of evidence contained in the dissenting opinion.
The second, third, fourth and seventh propositions rest mainly upon new evidence — that is, evidence contained in the present record which was not in the first. Whether it requires any remarkable mental acumen to distinguish the one record from the other I do not care to discuss.
There occurs in my former opinion this statement: “It is an entire mistake to suppose that there is any serious conflict between Judge Krum and Col. Broadhead. They differ as to details, but they agree perfectly as to the substance of the settlement — that it was to include both suits.” I desire to reiterate and re-affirm the entire accuracy of this statement. There' is nothing in the evidence at variance vrith it.
The fifth proposition above recited rests mainly upon Judge Krum, and it is the only one of the seven propositions that depends upon his testimony in the slightest degree. On this issue the great struggle in the case has been to BREAK down Judge Krum, so as to destroy the evidence on which this proposition rests. It is with that view that a desperate effort is made
He was not present, and knew nothing, and did not claim to know anything, of the occurrences in Krum’s office on the 7th of March, 1865, to.which Krum testifies. The attempt to array Broadhead against Krum on that point is a total failure. Failing in that, the fifth proposition must' stand. That being sustained, it would be of no avail to the plaintiff if the remaining six were decided in his favor.
I concur in overruling the motion.