Young v. King, 166 P. 53

Young v. King

166 P. 53 | Or. | 1917

Mb. Justice Bubnett

delivered the opinion of the court.

1. The essence of the plaintiff’s lengthy declaration appearing in the record is that the parties settled and compromised their differences by the defendant promising to give and the plaintiff agreeing to accept the note of the former, which stipulation the defendant failed to perform on his part. The rule is well established since Smith, v. Farra, 21 Or. 395 (28 Pac. 241, 20 L. R. A. 115), that

“a settlement and compromise of a claim asserted on reasonable grounds and in good faith, which the parties, having equal knowledge of the facts, consider doubtful, constitute a new and valid agreement which will be enforced in law, althdugh the matter compromised be not in fact doubtful in legal contemplation, and the settlement be not what a court would have adjudged upon the facts of the case”: See also Butson v. Misz, 81 Or. 607 (160 Pac. 530).

2. According to the allegations of the complaint when reduced to its lowest terms this new agreement superseded all previous conventions and settled all former disputes. This is admitted by the third defense which also pleads performance of the new stipulation on the part of the defendant, together with the refusal of the plaintiff to accept the note. This constitutes a defense to the action and the court was in error when it sustained the demurrer as to that plea.

3. 4. The other so-called pleas in abatement refer to the matters of inducement stated by the plaintiff lead*26ing up to the agreement to take the note mentioned. They are not apropos of the dispute because the defendant confesses to the new stipulation the legal effect of which is to supersede all former contracts and contention's. Whether the matter be called pleas in abatement or in bar is of no moment. The court committed an error in sustaining the demurrer to the third plea. For this reason the judgment is reversed and the cause remanded for further proceedings.

Reversed and Remanded.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.