Hendrick v. Thomas

106 Pa. 327 | Pa. | 1884

Mr. Justice Trunkey

delivered the opinion of the court,

In 1872 Hendrick and Thomas purchased a tract of land formerly owned by Hollenback, and engaged in the business of mining coal. On July 31, 1873, Thomas sold his interest to Hendrick, for ten thousand dollars, for which Hendrick gave his bond with warrant of attorney to confess judgment, conditioned that neither the obligation nor the judgment entered thereon should be collected from any other property of said Hendrick than that purchased of the Hollenback estate by the firm of Hendrick and Thomas. Judgment was entered upon the bond, and after four thousand dollars had been paid, it was revived by scire facias for eight thousand six hundred and sixteen dollars. Soon after the revival, execution was issued. On application of Hendrick, November 13, 1880, a rule to show cause was granted why an order should not be made restricting the collection of the judgment to the Hollenback estate ; and why execution should not be stayed as to all other property of defendant. It does not appear that that rule was ever disposed of by the court. But the parties compromised, and January 6,1881, Thomas gave a receipt in full satisfaction of debt, interest, and all costs paid by him, Hendrick to pay all costs then unpaid, and upon payment thereof the sheriff to return the writ stayed by order of plaintiff. Hendrick paid the costs on the next day. Thomas, by 1ns attorney, February 21, 1881, received the costs due to himself from the sheriff and stayed the writ. Nothing further was doue until March 6,1882, when an alias execution was issued. Thereupon Hendrick applied for a rule to show cause why the judgment should not be oponed, which was made absolute, and the parties agreed upon an issue for trial to be formed by the judgment standing as a declaration, and the defendant pleading payment, with leave, etc.

At the trial, to overcome his receipt, the plaintiff adduced his own statement unsupported by other testimony, that as a part of the agreement of compromise, Hendrick promised to give him employment; and upon this point he was contradicted by the defendant, who was strongly corroborated by the other witnesses who had knowledge of the transaction. The jury evidently thought with him that “ fortunately for truth and justice witnesses are to be weighed, not counted.” This being so, it is well to ascertain the terms of the contract from his own testimony. After stating that he and Stewart went to Hendrick’s office and Stewart stated their business, he says: “ Hendrick received us very kindly; he said he didn’t know whether he could make any arrangements or not; he had been talking about making arrangements with this Butler Goal Company, but if he could make arrangements with me lie could make arrangements with them, and then they would want me to take charge of the mines — run the mine for him. Then the question was asked by Mr. Stewart how much he would give to make a settlement; he said he wouldn’t give over six thousand dollars, and if I would make arrangements for those six thousand dollars, why, he could make arrangements with the Butler Coal Company, and have the breaker start up, and I could have the charge of it. I says, if you will do that I will take the six thousand dollars and settle this law business.” “He said he would.” Then they went to Gritman’s, the receipt was written, read and signed, and Hendrick gave him the check for six thousand dollars. In cross-examination he said that Mr. Cowan, treasurer of the Butler Coal Company, had previously told him they were satisfied they could make arrangements with Hendrick if he would make a settlement, and wanted him to take charge of the breaker for them. Cowan said if they could purchase the property, “ they would want him to run the breaker for them or something to that effect.”

For the purposes of this case it may be conceded that his testimony was sufficient to warrant a finding by the jury that Hendrick promised him employment in charge of a coal breaker. That employment was to be in the future — not till the mining of coal on the land should be commenced. Nothing was said respecting wages, or the term of service — when the service was to begin or end, save that it was to begin when arrangements should be made with the Butler Coal Company. The inquiiy is not whether an action would lie for the breach of such a promise, or what is the measure of damages for the breach, but whether the plaintiff, holding and enjoying the tangible fruits of the compromise, may treat the sum paid as a mere credit on the amount of the judgment, because of the breach of the promise.

The record shows that at the time of the compromise the dispute was not concerning the amount of the debt, but whether the stipulation that the lien and collection of the judgment should be restricted to certain property described in the bond should be enforced. It was as competent for the partie's to agree upon that restriction as it was for one to convey his interest in the property to the other in consideration of the bond. As originally entered the restriction was in the judgment. The judgment of revival was in default of a sufficient affidavit of defence, and it was in the power of the court to open it at any time for good cause. Instead of contesting the pending rule, the plaintiff agreed to receive, and did receive six thousand dollars, in satisfaction of the debt. The debt was for a larger sum, but the defendant had the option to pay it or suffer certain property to be sold in satisfaction. It is clearly shown by the learned president Judge of the Common Pleas that a compromise and payment to the creditor, of part of the amount of such a debt as this in satisfaction of the whole, is upon sufficient consideration, and is valid, even if it could be proved that the property out of which the debt is collectible is of greater value than the whole debt. Part payment of an overdue and unrestricted debt, in a legal sense, -is neither a benefit to the creditor nor an injury to the debtor, and therefore is not a good consideration for a promise to receive it in satisfaction. But a part payment on account of a debt at any time before it is due will form a good consideration for an agreement for postponement of payment, or for its extinguishment. The law pays no regard to the adequacy of the consideration ; if it is of some legal benefit to one party or injury to the other, though of the slightest kind, it is sufficient: Hartman v. Danner, 74 Pa. St., 36. A sealed instrument is presumed to be for good consideration, and therefore, upon part payment of a debt, a release under seal is valid. A release not under seal, supported by a legal consideration, is equally effective.

Thomas has made no attempt to impeach the settlement for fraud — the evidence fails to show fraud. He still holds the money he took from the defendant when he gave the written acknowledgment of satisfaction. His first act, more than a year after the making of the settlement, was to issue an execution as if the money he had received was only part payment of an ordinary judgment. The writ was stayed by the court and this issue directed. Piad he the right to rescind the agreement of compromise, and intended to exercise it, nothing was easier than to return the money to Hendrick and place him in the same position as he held immediately before the compromise. It avails nothing that the restriction of lien and collection may yet be enforced as to the balance of the amount in excess of the six thousand dollars, for before the compromise, Hendrick’s right to pay, or let the land be sold in satisfaction, extended to the whole sum, not merely to one-third part. Upon the facts as shown by the record, and Thomas’s own testimony, if he is entitled to anything, it is for damages resulting from breach of a collateral agreement to give him employment. Pie cannot recover such damages in an issue in the nature of a scire facias to revive the judgment. The judgment is the foundation and extent of his claim. By compromise and payment accordingly, the judgment was satisfied. The settlement involved more than payment of part of an overdue debt with a promise to give employment at some indefinite time in the future, which the creditor agreed to receive in full from the debtor. If the plaintiff is entitled to recover in this issue, as the case stands, he has all the benefit of the settlement of the matter in dispute as a penalty on the defendant for the breach of such alleged promise. The compromise remains unrescinded, and the plaintiff has no right of action on the judgment.

The first three assignments of error must be sustained. It is unnecessary to remark the other assignments.

Judgment reversed.