204 F. 934 | 8th Cir. | 1913
J. C. Rosenberger, an attorney at law, sued Lee and Jacob Shubert for professional services and recovered judgment. By this writ of error the defendants complain only of rulings of the trial court in respect of their defense that a binding compromise and settlement was made before the action was begun.
“Am writing this as a memorandum of om' agreement of settlement of today. You to pay me now for my services in tbe Woodward case a balance of $5,000.00 of which $-100.00 (exact amount $199.00) has already been received by ine in the simpe of court costs in Appellate Court and paid by Woodward, leaving net balance duo me $4,000.00. * * * Yon to save me harmless on account of fho claim heretofore asserted by Mr. Klein to % of my fees. This is, of course, in full of all services in the Woodward case if. the litigation is ended in accordance with the releases and stipulations signed by you to-day which seems certain.”
The fee of another attorney was also involved, and was referred to in the letter, but it is not of importance in the present litigation.-Shubert made no reply to the letter, but plaintiff having wired him, June 14th, that “our understanding at Chicago was based on immediate cash,” he wired in reply that he had been out of the city; and on the 16th he wrote, inclosing a check for $2,500, and said:
“This is a bad time of the year to arrange for this sort of thing, as everything is closed up and all our rents are due. 1 will send you the balance very shortly. Please make collections of whatever you can from Woodward, and you can credit the amount to your account, also the $100 tied up in Omaha.”
“In covenant where the damages are uncertain and to be recovered as in this case, a lesser thing may be done in satisfaction, and there ‘accord and satisfaction’ is a good plea.”
There has generally been an interchangeable use of the terms “accord and satisfaction” and “compromise and settlement” as to controversies over liquidated and unliquidated claims arising from contracts express and implied. Both terms were applied to the same situation in City of San Juan v. Gas Co., 195 U. S. 510, 521, 523, 25 Sup. Ct. 108, 49 L,. Ed. 299, 1 Ann. Cas. 796. But if there is a distinction in the application of the terms it is not important, here, for ,the general rule is that to be a defense to the original claim an accord must be followed by satisfaction and a compromise by settlement. First Nat. Bank v. Leech, 36 C. C. A, 262, 94 Fed. 310; Brown v. Spofford, 95 U. S. 474, 24 L. Ed. 508; Barkley v. Clark, 43 Kan. 43, 22 Pac. 1025. In the first of these cases this court said:
“It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails.”
The breach may be by failure to pay on a day fixed. Early v. Rogers, 16 How. 599, 14 L. Ed. 1074. There are cases in which it appears that the parties intended the new agreement should per se extinguish the old one, where the promise embodied in the accord or compromise was accepted regardless of its fulfillment. There a novation occurs, and the action must be upon the substituted agreement. The case at bar, however, is not of that character.
To maintain his action the plaintiff was not required to tender defendants the money they paid on the new agreement. He did not sue to rescind the agreement, nor had he broken its terms. Had he been trying to escape it, a return of what he received might have been necessary; but his action was on his original demand, and the agreement of accord or compromise was by way of defense. It was plaintiff’s right to regard it as having been repudiated by defendants, and to credit their payment. The defendants alone being in default were in no position to ask relief from their wrong by restoration of the status quo.
The judgment is affirmed.