1 Ind. 517 | Ind. | 1849
Wakeman, Kenyon, McElroy, and Bragg, who constituted a firm doing business in the city of New York, under the firm-name of Wakeman, Kenyon, and Co., recovered a judgment in the Vigo Circuit Court, in October, 1838, against Ezra M. Jones and Joseph O. Jones, for 3,138 dollars and 16 cents.
The present case arose upon a motion made by the appellees, to have a writ of fieri facias issued on the 6th of November, 1846, set aside, and satisfaction of said judgment entered upon the record. The parties appeared, and the case having been submitted upon affidavits filed by both parties and the facts shown by the records of the Court, the motion of the appellees was sustained.
It appeared, by a bill of exceptions which purported to contain all the evidence, that on the 8th of January, 1839, the appellants caused a writ of capias ad satisfaciendum to be issued, upon which the sheriff made return that Ezra M. Jones was not found, and that the writ had been executed on Joseph O. Jones, who had given bond to keep within the prison limits, under an act then in force. Afterwards the following entry was made upon the judgment-docket :
“ The defendant, Joseph O. Jones, having been taken in execution upon this judgment, was discharged by consent
“ Wright and Gookins, attorneys for plaintiffs.”
The agreement, referred to in this entry, was made in writing, on the 1st of April, 1839, between Hiram Smith, Marion M. Hikox, and Joseph O. Jones of one part, and on the part of the appellants by Wright and Gookins, as their attorneys. After reciting the recovery of the judgment, the issuing of the writ of capias ad satisfaciendum, the arrest of the said Jones, the execution of a bond to keep within the prison bounds, by Jones, with the said Hikox as his security, and the desire of the parties to adjust and compromise the demand, it was agreed that said Hikox would undertake to pay 500 dollars of said debt by the 1st of May then next ensuing, that said Smith should pay 500 dollars thereof within four months, and that said Jones should transfer to the appellants certain demands and their proceeds then collected and in the hands of the officers, and other good demands then due, amounting, in the whole, with the money collected and the sums to be paid by Hikox and Smith, to 2,250 dollars; in consideration whereof, the appellants were to take the last mentioned sum in full satisfaction of their judgment, and said Jones was to be “ forthwith discharged from arrest and from the custody of the sheriff.” Then followed the following stipulations:
“ This agreement is made by said Jones, Smith, and Hikox, in person, and on the part of Wakeman, Kenyon, and Co., by Wright and Gookins, their attorneys, and is to be submitted to Wakeman, Kenyon, and Co., for their approval or rejection. If approved by them the agreement is to stand, if not approved it is to be annulled and to become void, and in that case said Jones is to surrender himself into the custody of the sheriff, and stand committed in the same manner as if this agreement had never been made, and the discharge of said Jones is not to be taken or considered a satisfaction of the judgment. aforesaid, nor to prejudice the right of said Wakeman, Kenyon, and Go., to execution thereon in the same manner as if this agree
The next day after this agreement had been entered into, to-wit, on the 2d day of April, Wright and Gookins addressed a letter to Bragg, a member of the firm, with whom they had previously 'corresponded on the subject, and who was authorized by the other members to give directions relative to the collection of the claim. In their letter of that date, after making an unfavorable representation of the pecuniary affairs of the appellees, Wright and Gookins thus state the terms of the agreement: “ With this view of the case, we were induced to make an agreement with them which we closed yesterday, the terms of which are as follows One of your propositions, was to take 2,250 dollars, say, due January, 1839, instead of which, the substance of the agreement made yesterday between Jones and two good securities of one part, and ourselves as your attorneys on the other part, is, that 500 dollars shall be paid within one month, 500 dollars within four months, and the remainder of 2,250 dollars, that is, 1,250 dollars, to be paid in good notes and judgments now due and subject to the shortest legal process for collection. Of the latter, say, from 300 dollars to 400 dollars, are now collected and in the officer’s hands, and can be paid, say, 1st of May, (giving us time to correspond with you,) Jones to be discharged from arrest. This arrangement is to be submitted to you for your approval or rejection. If approved, the arrangement stands, if not, it is void, and Jones stands in custody as at present, being confined to the prison limits, we surrender the securities taken, and the matters are to stand as if no arrangement had been made, and having thus submitted the whole matter for your consideration we will wait your reply.”
To this letter Wright and Gookins received an answer, dated at New York, the 12th of April, 1839, and signed by Bragg for the firm, in which he says he has the fullest confidence in the judgment of Wright and Gookins; that
The sums agreed to be paid by Hileox and Smith were collected and paid to the appellants. Some other sums were also collected and paid over to them, the payments made amounting in the whole, according to the testimony of Mr. Gookins, to 1,915 dollars 67 cents. The last payment to them was made in July, 1841.
No assignment of the notes and other assets, specified in the agreement of the 1st of April, was made until the 6th of June, following, when another agreement was entered into by the appellees upon the one part, and the appellants, by Wright and Gookins, their attorneys, and other creditors of the appellees, upon the other part, whereby the appellees made a general assignment of their property to said creditors. This property consisted of notes, accounts, and judgments specified in a schedule, and the proceeds were to be applied — first, to the payment of a debt due a certain firm styled McCoon and Sherman, amounting to more than 300 dollars; secondly, to the payment of the sum of 2,250 dollars to the appellants, according to the terms of the agreement of the 1st of April; and thirdly, to the payment of the debts due the other named creditors.
One objection taken to the proceedings of the Circuit Court, in this case, refers to the nature of the proof. It is contended that affidavits should not have been received as testimony. The material facts, however, upon which the case must be decided, were not controverted by the parties, and as affidavits were filed upon both sides, without objection in the Circuit Court, we do not think any valid objection can now be made to the judgment on that ground.
It is a well established principle, recognized by this Court in the cases of Tatem v. Potts, 5 Blackf. 534, and Prentiss v. Hinton, 6. Blackf. 35, that the discharge, with
It is admitted by the appellants, that they consented to such an agreement as the letter of their attorneys, dated the 2d of April, purported substantially to describe ; but they say that letter did not truly represent the agreement which had been entered into, and therefore, they are not bound by any thing contained in it. The point in which they insist there is a material variance between the agreement actually entered into, and that described in the letter, is, that in the latter it was represented that the payment of the whole sum of 2,250 dollars, was to be guarantied by two sureties. We do not think, however, the phraseology of the letter will fairly bear that construction. It is distinctly stated, that the sum of 1,250 dollars, being that portion of the whole amount over and above the sums which Smith and Hikox undertook to pay, was to be paid in notes and judgments then due, and a part of the proceeds of-which was then collected and in the hands of the officers; and when it is considered, that the parties acted under it for several years, during which period Mr. Bragg visited Terre Haute, as is stated in the affidavit of Mr. Gookins, and upon being there informed by his counsel of the general state of the business, expressed no dissatisfaction, we do not think the appellants can now, merely upon the ground of this alleged variance, say they were deceived by the letter of their attorneys, and did not consent to, or ratify the agreement. It is, therefore, unnecessary to inquire, whether, if they had been so deceived, the position assumed by them would have been tenable.
It is also urged by the appellants, that their consent to the discharge of the judgment depended upon the performance of the terms of the agreement, which the appellees never did fully perform. We think it sufficiently clear, however-, that, by the terms of the agreement, Jones was to be discharged from arrest upon its ratification or acceptance by the appellants, and that it could not have
The case of Miller v. Edmonston, 8 Blackf. 291, is cited by the appellants in support of the position, that an attorney has no authority to compromise with a debtor, or to bind his principal by any arrangement for the satisfaction of a debt placed in his hands for collection, short of an actual collection of the money. Of the correctness of this doctrine there can be no doubt, but in this case we think it sufficiently appears that the agreement was ratified and confirmed by the principals.
The judgment is affirmed.
Bassel v. Salter, 1 Mod. 136.—Vigus v. Aldrich, 4 Burr. 2482.—Tanner v. Hague, 7 T. R. 420.—Clark v. Clement, 6. id. 525.—Ranson v. Keys, 9 Cow. 128—138.—Blackburn v. Stupart, 2 East, 243.