86 Iowa 166 | Iowa | 1892
Much stress is laid upon the fact that the officers •of the defendant city kept from Mrs. Porter’s knowledge the fact that the city had set apart twelve thous- and dollars to indemnify the mayor and aldermen for refusing to levy a tax to pay her judgment. In the exercise of good faith they were not bound to disclose this fact to her. This money was not set apart to pay her judgment. She had no right whatever to it. It may be' that the council acted illegally in thus taking the money from the city treasury for the purpose of indemnifying its officers and members for refusing to perform a legal duty, if such it' was, but this question we do not determine. For aught that appears, Mrs. Porter knew the facts relating to this twelve thousand dollars, but, in our view, it is immaterial whether she •did or not. She was no nearer securing the money on her judgment by legal means, by reason of the fact that the city council had set this money apart for a purpose •other than to pay her judgment.
But it is contended that the law is that an agreement, even if executed, to accept a less amount than that actually due, in satisfaction of a judgment, is without consideration and void. No doubt the great
The general rule, that a payment of part of a claim would not operate as a satisfaction of the whole, has been held not to apply in many cases, among which are the following: Where, in addition to. part payment, there is an additional consideration, as an article of value. Neal v. Handley, 116 Ill. 418. Where the doing or procuring of an act is a burden or inconvenience to the defendant, and a possible benefit to the plaintiff. Booth v. Campbell, 15 Md. 569. Or if a part be paid before all is due. Pinnel's case, 5 Coke, 117; Brooks v. White, 2 Metc. (Mass.) 283; Boyd v. Moats, 75 Iowa, 151. Or if payment of part be made in a way more beneficial to the creditor than that prescribed in the contract. Sibree v. Tripp, 15 Mees. & W. 23. Or payment of part at a more convenient place than that provided in the contract. Smith v. Brown, 3 Hawks, 580. Or if the debtor render certain services by consent of the creditor in full payment of a debt. Blinn v. Chester, 5 Day, 359. Or assign certain property. Eaton v. Lincoln, 13 Mass. 424. Or if he pay costs and expenses of an action brought to recover a liquidated debt, in addition to a part of the debt. Mitchell v. Wheaton, 46 Conn. 315.
“This rule, which may obviously be urged in violation of good faith, is not to be extended beyond its precise import; and, whenever the technical reason for its application does not exist, the rule itself is not to be applied. Hence judges have been disposed to take out of its application all those cases where there was
It is the settled doctrine that the rule we have been discussing does not apply to a case of creditors of an insolvent debtor who accept, in satisfaction of their claims, a composition or sum less than the full amount of their demands. Murray v. Snow, 37 Iowa, 410; 2 Parsons on Contracts [7 Ed.], p. 619, and note; Milliken v. Brown, 1 Rawle, 391; Paddleford v. Thacher, 48 Vt. 574. The city of Dubuque may, in one sense at least, be said to have been an insolvent debtor. It was bankrupt. It could not pay its debts. A consideration, in a legal sense, is said to “consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” 3 Am. and Eng. Encyclopedia of Law, 831; Black’s Law Dictionary, title “Consideration.” The facts clearly show that the consideration for -the assignment
Y. It follows from the conclusion we have reached that the district court did not err in dismissing the «cross bill of S. P. Adams, administrator of Sara Lee Porter. Mrs. Porter having during her lifetime parted with all her interest in the judgment, she had no property therein which could be sold, or which her heirs
VIII. As to the defense of collusion pleaded by the •city, the evidence fails to establish it.
It may be said that, technically speaking, this proceeding to enforce the attorney’s lien is not an action. Conceding this to be so, it must follow that the right to-the lien is based primarily upon the contract; but, to perfect that right, certain other steps must be taken as provided by statute. Now, it seems, if the right to maintain an action on the contract is barred, the right to enfcnce the lien must also fail; and it is said that while proceedings by an attorney to enforce his claim do not constitute an action, within the literal operation of the statute of limitations, yet it will, in general, be governed by the analogy of the statute. Jones on Liens, section 237; and see, also, McNagney v. Frazer, 27 N. E. Rep. (Ind.) 431. We are clear that when the statute has barred the right of the attorney to sue upon the contract and establish his right to his fees, and that question is properly raised in his proceeding to-enforce his lien upon a judgment, his lien must fail. The intervenor’s cause of action for his attorney’s fees arose when the settlement was effected. Adams v. Bank, 36 N. Y. 255; Marshall v. Meech, 51 N. Y. 142; Mygatt v. Wilcox, 45 N. Y. 306. He might then have
But it is contended that the lien holder is so subrogated to the right of the judgment plaintiff as that, to the extent of his lien, he may enforce it in the same time and manner as the judgment plaintiff could do; and counsel seem to claim that this doctrine has been established by this court. -A brief review of the cases will, we think, show that this court has never so held. In Hurst v. Sheets, 21 Iowa, 506, it is said: “The lien of the attorney is upon what? The statute answers: It is ‘upon money due his client in the hands of the adverse party.’ ” In Cowen v. Boone, 48 Iowa, 353, it was held that “the statute does not give the attorney a lien upon the judgment, as a judgment, * * * but he has a lien on money due his client, in the hands of the adverse party, from the time of giving the required notice.” In that case the court expressly says it does not determine whether the lien holder had the right to enforce the lien in the same manner and to the same extent that the plaintiff in the judgment could. In Winslow v. Central Iowa Railway Co., 71 Iowa, 197, it was held by the court that - the Code did not provide for a lien on the judgment, but upon the claim against the adverse party, or the money in his hands.
In Brainard v. Elwood, 53 Iowa, 30, it was held that, when the notice of the lien is given as provided by law, “it appears to us that the attorney acquires an interest in the judgment, and by a proper proceeding may have a decree against the judgment debtor and judgment creditor for the enforcement of so much of
The fact that the law has provided for an attorney’s lien upon the judgment, as an additional means of securing to him his compensation, is no reason why he should not be held to avail himself of his right to enforce said liens within the period of limitations applicable to his action on his contract. In other words, the attorney’s right to enforce his lien is measured, so far as time is concerned, by his right to maintain an action against his client for his fees. Counsel -for the intervenor says: “It may be conceded, if it were at all material or necessary, even that the statute would begin to run against the intervenor as soon as he might have commenced his action to recover h,is fee. But it appears in the evidence in this case that, by the cooperation of the defendant, both in purpose and effort, Mrs. Porter was secretly conveyed out of the state, to
No steps were taken to make intervenor’s claim from Mrs. Porter’s estate, presumably for the reason that on December 6, 1867, when Roberts paid the Intervenor part of his fee, he, in a receipt then given, expressly waived any claim to collect further fees of Sara Lee Porter, and agreed to look only to the city of Dubuque for 'the balance of his fees. But we need not determine as to whether he was bound by this agreement whereby he released Mrs. Porter. In any event his cause of action against her was barred, more than ten years having elapsed since her death, and prior to the commencement of this action. Such' being the case, his cause of action, as against the city to enforce his lien, was also barred.
The evidence shows that the intervenor was employed as one of the attorneys for Sara Lee Porter against the defendant city; that he rendered valuable services in the line of his employment; that he gave notice of his lien as required by statute then in force; that he has received only part of the compensation due him; but we hold that he cannot recover, for the reasons above stated. We are not unmindful of the fact that in 1867, the time this lien notice was served, there was no statute in force providing for making the lien effective after judgment, such as now exists, but we have treated the case as if it arose under the Code of 1873. The provisions of the Code in 1873 are certainly as favorable for the enforcement of the attorney’s lien as was the earlier statute referred to. Revision of
The'result we have reached being in any event decisive of the case, we need not discuss the many other questions raised. We have- examined the case with care, and are satisfied with the result reached by the district court. Affirmed.