6 Wis. 175 | Wis. | 1858
By the Gomt,
We think it wholly immaterial to enquire whether Blodgett was authorized, in the first
But it is contended, that although Blodgett and Kneeland were authorized to compromise the judgment, yet the payment of a less sum than the amount due could not operate as a discharge of the judgment.
Eegarding the acts of Blodgett, Kneeland and others, as the acts of the appellants themselves, the whole matter is reduced to a very narrow compass.
The appellants, distrusting Blodgett’s fidelity in paying over the money to be received from the appellee, directed that the proceeds of the settlement of the judgment should pass through Mr. Kneeland. Accordingly the defendant caused a draft to be procured for the amount agreed upon, of Messrs. Marshall & Co., and caused the same to be delivered to Mr. Kneeland. This draft was received by Mr. Kneeland for the appellants, forwarded by- him to them, was received by them, and its proceeds applied to their use, with full knowledge of all the facts and circumstances of the case. After all this can they repudiate their agreement, especially without return ing the draft to the appellee ? In case an action were brought upon the original judgment in lien of this motion, could not these facts be pleaded as an accord and satisfaction fully executed and hence valid. Would not the discharge of the judgment, executed by Blodgett, if it had been executed and delivered by the appellants in person, have been good evidence of such accord and satisfaction? We think so. The evidence, although somewhat conflicting, is sufficient to charge the appellants with all the legal consequences of the acts of Blodgett and Kneeland. There is strong reason to believe that they did originally authorize the compromise, but at all events- there can be no doubt that they ratified the same, accepted the draft
Nor is it necessary in view of the facts in this case, to consider whether the instrument of satisfaction executed by Blodgett is in strict conformity with the statute. The question is not, whether Blodgett, the attorney had power to enter satisfaction, or whether he did it in due form; but it is whether Reid & Sprague themselves had power thus to satisfy their oym judgment, and whether they are to be held bound by their own acts, or acts which they have made their own by unqualified adoption.
Nor is it a question here whether the satisfaction piece executed and acknowledged by Blodgett, was sufficient to authorize the clerk to enter up satisfaction under sections 20 and 21, of chapter 102, of the Revised Statutes. On a careful inspection of the record it does not appear that the clerk ever attempted to make a formal entry of satisfaction in pursuance of said section 20 and 21. He filed the satisfaction piece executed by said Blodgett, and the motion is to “ vacate the satisfaction so filed?’’ We do not perceive how these provisions of the statute have any application to this case. Section 23 of the same chapter, authorizes the party or the attorney, on the payment of a judgment, to acknowledge satisfaction, or to enter satisfaction on the docket without acknowledgment.
We again recur to the sole question to which our inquiry is reduced: Was it competent for the plaintiffs in the judgment after execution had been issued and returned nulla bona, to compromise the judgment by receiving a draft on New York for an amount equal to fifty cents on the dollar, and bind themselves to a discharge of the judgment by an acknowledgment of satisfaction like the one before us.
Either this satisfaction is valid and effectual, or it is of no force or effect. If the former, the arrangement having been
It must be admitted that there is some confusion in the boohs in regard to the precise doctrine to be observed in eases of this nature, and I only propose to refer to a few, in order to sustain the views just stated, which we believe to be in accordance with the principles adopted in all analogous cases. In Watkinson vs. Inglesby and Stokes, 5, J. R., 386, it was held that the delivery to a creditor of stock in trade and debts due the debtor, and accepted by the former in satisfaction, was good in law, as an accord and satisfaction, and might eveu be pleaded pwis da/rrein conimuanee, and that it made no difference whether the stock brought more or less than the amount due, provided it was received as a full satisfaction.
In the case of Anderson vs. The Highland Turnpike Co., 16, J. R., 86, the defendant was indebted to the plaintiff for work and labor, to the amount of 1,123 dollars and sixty-two cents. Before the referees it was proved that he agreed to receive certificates of their stock, in full of his demand, and was to call at a place designated, and get them. The defendants left the certificates at the place designated. The referees allowed the certificates at par, as an accord and satisfaction, and their award was sustained by the court. The court say: “An accord not executed is no bar to a pre-existing demand; but if executed by delivering a collateral thing, which is agreed to be accepted as satisfaction,.it is a bar.
Where a debtor gives his promissory note, endorsed by a third person, as a future security for a part of the debt, which is accepted by the creditor in full satisfaction of all demands, it is a valid discharge of the whole debt, and it may be
In Brown vs. Feeter, 7 Wend., 301, it was held that where a judgment creditor had agreed to take lumber in satisfaction of the judgment, and had acknowledged that he had received sufficient to satisfy it, it operated as a satisfaction, and the suing out execution afterward, and selling property thereon, were tortious acts for which .the plaintiff was liable. In Evans et al. vs. Wells and Springer, 22 Wend.,224, 341, some of the questions involved in this case were pretty fully discussed, and the court held that, where an agent compromised a claim for his principal, and executed a release in his own name, though it was not binding on the principal, as a release, yet it was a good bar to the further prosecution of the claim, by the way of accord and satisfaction ; and for that purpose it was competent to prove by parol, that the principal ratified the acts of the agent, by showing that, with full knowledge of the facts, he reaped the benefit of the compromise by accepting in whole or in part, its fruits.
But it would be too tedious to go over all the cases which might directly or indirectly bear upon this question. While there are numerous cases going to show that a debt is not discharged by the payment of a sum less than that which is due, yet I have been unable to find a single case where the creditor has been permitted to hold on to, and enjoy the fruits of, a
In the absence of all fraud, and none is pretended here, we think the circuit court did right in refusing to lend its aid to vacate and set aside the acknowledgment of satisfaction of the plaintiffs, voluntarily made, upon a fair compromise, the fruits of which they still continue to enjoy.
The judgment of the Circuit Court is affirmed with costs.