56 Wis. 630 | Wis. | 1883
On the 17th. day of March, 1873, one Manville Barber and the defendant gave to the plaintiff their joint and several note for the sum of $2,500, payable one year after date, “ with interest at the rate of ten per cent, per annum after date until paid.” Soon after the giving of the note, Manville Barber died, and the defendant was appointed sole executor of his estate, and this note having been presented as a claim against the estate, it was duly allowed and adjudged as such on the 31st day of October, 1874, by the county court of Waukesha county, having jurisdiction thereof. Afterwards payments were made thereon from time to time, and finally, on the 8th day of April, 1880, the balance, consisting of what remained unpaid of the judgment, and interest thereon at seven per cent., was paid, and a receipt was given therefor by the plaintiff, which, by a condition therein, was to be “ in full for his claim against said estate if it should be duly adjudged and determined, on final appeal to the supreme court, that the said sum of $2,500 draw interest only at the rate of seven per cent, from the time of such allowance.” This suit is brought to recover the balance of said note, computing the interest thereon at the rate of ten per cent., deducting only the actual amount paid on the claim so allowed against the estate of Manville Barber, deceased.
The answer substantially sets up these facts, and also that the defendant was sivreby only on said note, in bar of this
Only two questions, therefore, are presented in this case: (1) Did this claim after its allowance bear legally only seven per cent, interest ? (2) Did such payment and satisfaction discharge the defendant as the other joint and several maker of the note?
It is the opinion of a majority of this court that such allowance was a judgment and bore only seven per cent, interest, and that its full payment and satisfaction by the
The statute provides that such a claim, when duly allowed, “ shall be recorded and stand as the judgment 'of the court.” Sec. 3842, R. S. In Price v. Dietrich, 12 Wis., 626; Bank v. Kidder, 20 Vt., 519; and in Rix v. Nevins, 26 Vt., 389, it is held that such a judgment has the same force and effect of other judgments, except as to the manner of collection; and in Mitchell v. Mayo, 16 Ill., 83, it is held to the same effect, and further, that such a judgment would bear only the common and lawful rate of interest (in that state) of six per cent, after the rendition thereof. There is no question but that such an allowance by the county court is to all intents and purposes a judgment of record, excepting that an execution cannot be issued thereon. The claim, whether of account or note, is merged therein, and, so far as the estate is concerned, it is extinguished thereby, and that such allowance is a full, complete, and final adjudication thereof, as in cases in other courts having jurisdiction thereof, and that the maxim transit in rem judicatam is as applicable as in other cases.
The common lawful interest without contract is seven per cent. Sec. 1688, R. S. It is directed that on execution upon ordinary judgments “for the recovery of money, that interest shall be collected on the amount recovered from the date of the rendition thereof until such amount is paid.” Subd. 8, sec. 2969, R. S. In sec. 3164, R. S., there is special provision for interest on judgments of foreclosure at ten per cent., and it is only by virtue of this section that such a judgment would bear over seven per cent, interest. Mb vi termini and its express provision in such a case would exclude all other cases. The statute seems plain enough, but it has been expressly
It follows, therefore, that the judgment of the county court in which this note was merged, so far as the plaintiff is concerned, was fully paid and satisfied; and this brings us to the last question, Was this defendant thereby discharged from any further liability on the note? This question appears not to have been specially considered by the learned counsel of the appellant, but by courtesy to the eminent counsel, and believing that their contention in defense is candid and sincere, wre have considered it more at length than was perhaps necessary, especially as the question has once been decided by this court in language which ought not to be misunderstood.
In Sherman v. Brett, 7 Wis., 141, it is said in the opinion: “ It presents the not unusual case of a separate judgment against several persons liable in the same action. The rule of law in such cases is so clear that authorities need not be quoted for its exemplification. There can loe but one satisfaction, but all of the judgment debtors are liable up to the point of satisfaction, and to reasonable costs in the prosecution of appropriate remedies.” This authority would seem to be in point and to rule this case. The plaintiff had obtained separate judgments against the defendant and three others for the same cause of action, and, on execution against one of them, property of a large amount and greatly in excess of the judgment was levied upon, and on the payment of a small amount in money the levy was released by direction of the plaintiff. The judgment against that defendant was held thereby satisfied, and, by reason thereof, the judgment against the defendant in the action was also satisfied, and the order
It is true, the plaintiff here does not claim to recover for the whole original claim, but only the excess over and above the allowance of the county court, and the seven per cent, interest thereon since, computing the interest at ten per cent, on the note at the time of the judgment;' or, as we understand from the meager details of the case, the plaintiff asks judgment for the excess of three per cent, over what was paid on the judgment of the county court, and interest thereon at the rate of ten per cent. In any view, the principle is the same. The judgment of the county court was for the whole note and interest, and that judgment has been fully paid and satisfied, including interest thereon according to law. As soon as that judgment was paid, the estate had the only surviving right of action against this defendant, as a joint and several maker with the deceased, for contribution, and that right is also based upon the satisfaction of the entire claim of the plaintiff.
"Would the plaintiff’s right have been different if the judgment of the county court had been paid immediately on its rendition, with the full ten per cent, interest upon the note? Could he in such case delay suit against the other joint and several maker for nearly six years, and then bring his action for the interest on the note at the rate of ten per cent., which had accumulated since?
When payment has been made by one jointly and severally liable on a note, he is entitled to the possession of the note in order to sue the others for contribution. 2 Parsons on Notes & B., 215, 221. Those jointly and severally bound, as to this rule of satisfaction and discharge, stand precisely like those jointly bound, and the rule is uniform that payment by one discharges all, and payment is at least as full satisfaction and discharge as a technical release under seal or by parol. 1 Parsons on Notes & B., 247, and note. “ It is in either case an admission that the debt is paid.” Id., 248. The same learned author says: “ The reason of this rule, that a discharge of one is a discharge of all, is not merely technical; ” and then enforces the rule by the argument that the one who pays has the immediate right of contribution against the others, whether jointly or jointly and severally bound. Id., 253. The payment of a separate judgment, where several are equally bound, will discharge all of them. This is substantially the language of Freeman on Judgments, and he cites, with many other authorities to sustain the rule, Sherman v. Brett, in this court, supra. “ The holder of a joint and several note of A. and B., by discharging A. discharges B. also,” is the sententious language of Mr. Chitty, in his work on Bills, § 417. To the same effect is Story on Prom. Notes, 425; and numerous authorities are cited.
Two separate judgments on a joint and several note are in substance & joint judgment, “and the pajnnent of one operates as a satisfaction of both.” Harlan v. Berry, 4 G. Greene, 212. To precisely the same effect is Ward v. Johnson, 13 Mass., 148. In McReady v. Rogers, 1 Neb., 124, it is held “ that several actions may be brought and several judgments recovered against several wrong-doers, but one satisfaction can be had.” In Elliot v. Porter, 5 Dana (Ky.), 299, it is
The circuit court properly directed a verdict for the defendant.
At common law the release of one of several persons jointty liable was a release of all. This, however, is not so under our statutes. Sec. 4204, R. S. So, when one of several persons jointly liable dies, the creditor may not only proceed against the survivors, but also against the estate of the deceased, the same as though the obligation had been several as well as joint. Sec. 3848, R. S. If that is so -where the liability is joint and not several, it certainly is
Such being the law in relation to a note which is several as well as joint, it must be conceded that Manville, during his life-time, and the defendant Silas were each liable to a separate action, and hence to a separate judgment, upon the same note. The same continued true with respect to Silas and the estate of Manville after his death. But the judgment against the estate having by operation of law reduced the rate of interest from ten to seven per cent., there was only due from the estate thereon, April 8, 1880, $1,283, which amount was paid thereon by the estate on that day. The question remains whether the payment and satisfaction of that judgment at that time had the effect to discharge Silas from his several liability on the note. Under the decision of this court in Dill v. White, supra, there can be no question but what the plaintiff could have maintained a separate action on the note against Silas, after judgment against the estate of Manville, as well as before, and had he brought such suit and obtained such judgment therein April 7, 1880 (the day before such payment by the estate), there would, I apprehend, be no doubt but the plaintiff might have included therein interest on the note at the rate of ten
Such being the respective liabilities of the defendant and the estate on that day, I am unable to conceive of any logical reason why the payment' by the estate the next day of $1,283, upon the judgment in favor of the plaintiff, could operate as a satisfaction and discharge of the then existing iability of the defendant to the plaintiff upon the note of more than $1,700. It is well settled that the payment in money of less than the -whole of an undisputed debt, already due and payable, by one who is liable therefor, and without any new consideration, is not a satisfaction or discharge of the balance,' even though by agreement it was expressly received in full. Fitch v. Sutton, 5 East, 230; Harriman v. Harriman, 12 Gray, 341; Curran v. Rummell, 118 Mass., 482; Ryan v. Ward, 48 N. Y., 204; Hayes v. Davidson, 70 N. C., 573; Lerdall v. Charter Oak Life Ins. Co., 51 Wis., 429. Such, being the law, it seems to me that logically the payment made on the judgment by the estate should only operate as satisfaction pro tcmto of the defendant’s liability to the plaintiff on the note. There are certainly authorities
In Jones v. Kilgore, 2 Rich. Eq., 64, the plaintiffs, as sureties on a joint and several note, were sued, and judgment recovered against them. The principal having died, his administrator was sued in a different county, and the administrator having successfully pleaded usury, a recovery was only had for the principal sum named in the note, without any interest, for which principal sum judgment was recovered against the administrator, and the same was paid and satisfied by him. Thereupon the plaintiffs, who were defendants in the other judgment on the same note, filed a bill to enjoin the collection of the judgment against them, on the ground that it had been satisfied by the payment and satisfaction of the judgment on the note against the administrator, and it was held that “ where judgments on the same cause of action are identical in amount, satisfaction of one is satisfaction of all; where, however, they are not for the same amount, satisfaction of the one for the smallest sum is only satisfaction pro tcmto of the. others.” Lumpkin v. Ferguson, 10 Rich. Law, 424, was an action on a sealed note given by F. as principal and G. as surety, and separate actions were brought, one against F. and the other against the administrators of G. E. failed to appear, and judgment was recovered against him for full amount of principal and interest. In the other action, only the principal sum was recovered, usury having been successfully pleaded, and it was held “ that payment of the judgment against the administrators of G. was satisfaction pro tcmto only, and not in full of the judgment against E.” In Guerry v. Perryman, 2 Kelly (Ga.), 63, it was heM that “ if A., as heir of 0., recovers of B., the administrator, a judgment for his distributive share, and afterwards sues D. as security on the administrator’s bond, and gets a judgment for a less sum against him and collects the same, the first judgment is not
These decisions seem to be logical, and in my judgment are based upon sound principles. Time will not permit further search for others which may exist, but the number in which the precise point has been considered seems to have been very limited. The reason is obvious, since separate judgments against several parties on the same claim are usually for substantially the same amount, and hence satisfaction of one will necessarily be satisfaction of the others. But even then the rule has not been so stringent as to exclude the recovery of costs in the other judgment. Sherman v. Brett, 7 Wis., 139; First Nat. Bank of I. v. I. P. M. Co., 45 Ind., 5; Stevens v. Briggs, 14 Vt., 44; Livingston v. Bishop, 1 Johns., 290.
As this court, in Ellis v. Esson, 50 Wis., 139, made a distinction between cases of tort “ where the amount of the damages is the subject of proof and computation,” and “ those cases where the damages are not the subject of proof and computation, but rest mostly in the discretion of the jury,” so I think there is a broad distinction between all actions of tort where the damages are more or less unfixed and uncertain, and a several liability definitely fixed by written contract so that the amount thereof is readily and with certainty ascertained by mere computation. In that case it was said by Mr. Justice Taylok that “in cases where there is no technical release and discharge of one of several joint wrong-doers, whether the receipt of money from one, accompanied with an agreement not to prosecute him for the wrong, is a discharge of the other wrong-doer, depends upon the question whether such money was received as an accord and satisfaction for the whole injury. If it was, then all are discharged; if it was not, but only as a part satisfaction, then it is a discharge of the other pro tanto.” The opinion
By the Oourt.— The judgment of the circuit court is affirmed.