33 Neb. 853 | Neb. | 1892
Prior to the 14th day of October, 1884, the defendant Kinney was in possession of the north half of section 30, township 6, range 2, in Fillmore county, as tenant of the plaintiff. During all of the time between the date named above and the 16th day of May, 1888, said parties were engaged in litigation with each other. It is necessary to make mention in this connection of some of their contentions, for reasons which will hereafter appear. First, plaintiff filed his bill in equity to restrain defendant Kinney from removing certain corn from the premises named. This case terminated in a judgment for the defendant in the district court, which was affirmed on appeal
On June 12, 1886, J. P. Maulé filed an attorney’s lien against said judgment for $100 on account of services rendered in said case, and on the 15th day of December, 1888, he filed an additional lien for $136.35, and on the 17th day of the same month the defendant Rushton filed a lien for $45 for services as an attorney in the same case. On the 16th day of May, 1888, the plaintiff and said Kinney entered into a written agreement, of which the following is a copy:
“ To whom it may concern: Know ye, that in consideration of the sum of $60 paid unto Martin E. Kinney by William J. Yates, both of Fillmore county and state of Nebraska, the receipt whereof is hereby acknowledged, that all differences as existing, and all claims as from one against the other of said parties, are hereby settled in full, as pertaining to the taking of certain corn by William J. Yates belonging to said Martin E. Kinney some time during the close of the year 1884 and the commencement of the year 1885, and this is in settlement in full of all matters arising out of the same.
“Datedthis 16th day of May, A. D. 1888.
“Martin E. Kinney.
“Witness: William J. Yates.
“ F. B. Donisthorpe.
« W. C. Sloan.”
On the hearing before the district court plaintiff introduced the foregoing written agreement signed by himself and Martin E. Kinney, and testified in his own behalf that at the time of the alleged settlement he had no knowledge of the claim of Rushton against the said judgment, and rested. The assignment of the judgment by Kinney to Noble is clearly established by the uncontradicted testimony of the latter, hence the only material question in controversy is the alleged settlement. It requires no argument to sustain the proposition that Noble has the right to enforce collection of the judgment, unless that matter was included in the settlement between plaintiff and Kinney and the consideration thereof, $60, paid without notice of the assignment. Plaintiff evidently assumed that the written agreement should be construed to include the suit for malicious prosecution and the judgment against him in said action. The agreement in question will not bear such a construction. The latter part of the contract evidently limits its application to claims for the taking of certain corn by plaintiff belonging to said Kinney. There being a failure of proof upon the material issue, plaintiff is not entitled to have the judgment enjoined.
There remains one question which is presented by the pleadings. Maule’s first lien for $100, it is admitted, was duly filed and notice thereof given long previous to the assignment of the judgment to Noble. Plaintiff was therefore bound to pay and satisfy said lien, notwithstanding the assignment of the judgment to Noble, and he should accordingly be credited with the $100 paid in satis
Affirmed.