Walker v. Ayres

1 Iowa 449 | Iowa | 1855

Wright, C. J.

It is claimed that'the court erred in dissolving this injunction, and dismissing the suit. To determine this, it becomes necessary to refer to the testimony as shown by the depositions. Taylor, the former sheriff1, swears that he had in his hands, an execution in favor of the estate of Davis, against Wilson, which was for a larger amount than Wilson’s judgment against the estate, on which he also, at the same time, had an execution; that he sold the property of Wilson, to satisfy the balance of the execution against' Him, after deducting bis judgment against tbe estate, it being understood between tbe parties at tbe time, the smaller judgment was to be offset; but that be returned tbe executions unsettled, be baying' no directions to indorse satisfaction on either, and that if be bad been so instructed' bj Ayres, be should have credited tbe "Wilson judgment on tbe execution in bis favor.

Philip Yiele swears, that be was- tbe attorney of Ryder, and had a negotiation with Ayres, with regard to Ryder’s claim against tbe estate; that-Ayres proposed to-assign tbe judgment against Walker and Eno; and that during tbe negotiation,'they called on Walker, for tbe purpose of ascer■taining the amount of the credits which be claimed, and that Walker then made a memorandum of tbe same; that Ayres objected to allowing tbe Wilson judgment, claimed by Walker, on tbe ground that it bad been paid by set-off, in tbe manner referred to By Taylor, prior to tbe assignment to Walker; that be knew of such assignment to Walker of the Wilson judgment, at tbe time be took tbe assignment to Ryder; and that beside tbe payments stated in complainant’s bill, be bad received on tbe 16th of June, 1851, $82.46, on tbe judgment against Walker.

John G-. Walker swears, to tbe interview between Ayres, Yiele, and Joel 0. Walker; states that it was in tbe winter of 1845, in tbe clerk’s office of Lee county; that Ayres was satisfied with all tbe claimed credits, except tbe Wilson judgment; and that said Wilson judgment was assigned to complainant the fall before.

Samuel B. Ayres swears, that Walker was entitled to a credit for all of said' judgment, except $406.90 which was assigned to Ryder, on January 15, 1845; that Walker also claimed, either at tbe time- of tbe interview referred to by tbe other witnesses, or since, a credit for tbe Wilson judgment ; that be would not allow it, because of its payment in tbe manner stated by Taylor; that be directed tbe sheriff to make tbe proper set-off and returns, and supposed it bad been done, until tbe day of taking bis deposition; that be does not know whether Ryder knew that tbe judgment against Walker was all satisfied, except $406.90, at tbe time of its assignment to bim; and that tbe assignment was made to Ryder in good faitb, and for a valuable consideration.

So far as tbe record discloses, tbis was all tbe testimony offered. Tbe complainant brings into tbis court, transcripts of tbe judgments referred to in his bill. Tber'e is nothing to show, however, that such testimony was u§ed, or offered, in tbe court below, and it cannot be considered here. We can only act upon tbe testimony upon which tbe decree below was rendered. Perkins v. Testerment, 3 G. Greene, 207. We must, therefore, decide tbe case, without reference to such .transcripts.

Neither do we give any weight to. tbe allegations contained in tbe amendment to complainant’s bill. Tbis was demurred to, for tbe reason that it was not accompanied with tbe necessary verification. It is clear, it should have been so verified. Had it been a mere formal amendment, averring nothing material to tbe sustaining of tbe injunction, such oath might have been unnecessary. But containing, as it did, substantial matter, we know of no rule that would permit such amendments, without verification to tbe same extent as tbe original bill. Eden on Injunc. 149; Rogers v. Rogers, 1 Paige Ch. 424; Whitemarsh v. Campbell, 2 Ib. 69; Renwick v. Wilson, 6 Johns. Ch. 81; Parker et al. v. Grant et al., 4 Ib. 434; Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46.

Tbe case must, therefore, be determined on tbe original bill, answer, replication, and tbe testimony above recited. It will be observed that tbe court below, dissolved tbe injunction, and dismissed tbe complainant’s suit, leaving tbe parties just as they stood before tbe bill was filed. We cannot think tbis was correct. Tbe execution which was enjoined, was for tbe whole amount of tbe judgment, less certain credits, amounting in all to $347.25, and tbe sheriff bad levied upon property, and was about to sell it to satisfy tbe balance of said execution, less these payments. Tbis is averred in tbe bill, and admitted in tbe answer, tbe defendant claiming, that those were all tbe just credits that should be made on said judgment, and so treating it, be says in tbe ■conclusion of bis answer, there is still due him $1,172.03. Then, as the decree now stands, the plaintiff in the judgment at law, is authorized to proceed in its collection, deducting therefrom only the said credits, amounting to $347.25, which would leave due at the time of the settlement and assignment to Ryder, in June, 1845, about the sum of $783, and near the amount which respondent claims at the time of answering, in March, 1852. To say nothing of the Wilson judgment, this would be clearly inequitable, according to the testimony. The depositions of Yiele and John Gr. Walker show, that Yiele was acting as the attorney of Ryder, at the time of the assignment, and before it was made; he had full knowledge of what it was, that Walker claimted, and exactly what the subject of controversy was between him and Ayres, to wit, the Wilson j udgment. All other claimed credits, were conceded to be correct. So that the attorney of Ryder had notice of what was claimed by Walker, and what it was he was getting in payment or security for the debt of his client. Such notice was the same, .as if bi'ought directly home to Ryder. Ayres swears to the .■same thing, and he moreover states, that the Walker judgment was then all paid, except $406.90, and that this was assigned to Ryder. So that instead of there being a balance of $783, in January, 1845, when the judgment was assigned, there was only the sum of $406.90. How the calculation was made, or what the credits agreed upon were, is not disclosed. But by taking these payments, amounting to $847.25, and adding thereto the Walker judgment of $268.76, and that of the Shaffers, $29.99, and deducting them, we will approximate the amount assigned, $406.90. The suit should, therefore, not have been dismissed, nor the injunction entirely dissolved. If the complainant was entitled to any relief, under the case made in his bill, it should have been granted pro tanto. It is no answer to this, to say that Walker’s and Shaffer’s judgments could not be legally offset against the judgment obtained against Eno and himself. If Ayres so agreed, however, he would be bound by the agreement, and Ryder, through his attorney, haying notice, would be bound in like manner.

It, then, still remains to consider the claim to offset the Wilson judgment. And to this, there is one sufficient and controlling objection. The Gomplaina-nt is seeking to enjoin a judgment at law, upon the ground that he has certain demands against the plaintiff in the execution, which in equity and good conscience, should be offset against such judgment. In such case, he should at least disclose as much, or as strong, a claim to be paid the debt sought to be offset, as if he was suing originally on such debt, to say nothing of other matters and equities that it might be necessary to show. With regard to the Wilson judgment, however, he does not show anything that would entitle him to offset it. It is not sufficient that such judgment was once rendered. It must have remained unsatisfied and in full force. This is nowhere averred. He is particular to state, that his own and the Shaffer judgment, are unsatisfied and in full force; but he makes no such averment as to the one in favor of Wilson. It is also expressly denied in the answer, that this judgment is in full force or unsatisfied. And there is not only the want of such averment in the bill, and the -existence of such denial in the answer, but the proof pretty conclusively shows, that such judgment was in fact satisfied.

We think, therefore, that the decree below should have been to enjoin the collection of all of said judgment, except $406.90, with interest thereon, from January 15, 1845, and deducting therefrom the sum of $82.46 of date June 16, 1852, which is shown to have been paid since the filing of •the bill.

The decree will be reversed, and procedendo issued to the court below, to enter a decree in accordance with this opinion.