Brown v. Kern

• Decision Date: 07 June 1899
• Parties: BROWN v. KERN et al.
• Court: Washington Supreme Court

57 P. 798

21 Wash. 211

BROWN v. KERN et al.

Supreme Court of Washington

June 7, 1899

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Sarah J. Brown against John Kern and others. There was a judgment for plaintiff, and from an order denying to defendant William M. Ridpath an order canceling and satisfying the judgment as to him, he appeals. Reversed.

Blake & Post, for appellant.

Samuel R. Stern, for respondent.

DUNBAR J.

This appeal is from an order of the lower court denying the motion of appellant, Ridpath, for an order canceling and satisfying as to him the judgment entered in the case of Sarah J. Brown against John Kern, Phoebe Kern, William M. Ridpath, and others. The findings of the court, in substance, were: That in 1894 Sarah J. Brown obtained judgment against John Kern Phoebe Kern, William M. Ridpath, and G. G. Smith for a certain sum of money; that thereafter the plaintiff, in attempting to settle said judgment, and get the same paid entered into a contract with the defendant Ridpath and with defendant Kern separately, whereby it was agreed by and between the plaintiff and the defendant Ridpath that Ridpath should pay one-half of said judgment in satisfaction thereof as to him, by paying what cash he could, and giving his note for the remainder, secured by 1,000 shares of Le Roi mining stock; and an agreement was made with the defendant Kern that he should pay half of said judgment by conveying certain real estate in the city of Spokane in satisfaction of the judgment as to him, providing the title and incumbrances as to said property should be satisfactory to plaintiff. That thereafter Ridpath, in pursuance of said agreement, and in payment of the one-half of said judgment, paid the plaintiff $266.70 by draft or bill of exchange on a New York bank, and executed his note for the remainder of the same, securing its payment by a pledge of 1,000 shares of Le Roi mining stock, all of which was accepted by plaintiff as the defendant Ridpath's performance of his said agreement with plaintiff; and that said draft or bill of exchange and said note were duly paid. That at the time the defendant Ridpath paid the half of said judgment the plaintiff gave him a receipt therefor in satisfaction of said judgment according to the said agreement. That plaintiff's agreement with the defendant Kern was never carried out, for the reason that plaintiff was not satisfied with the title to the real estate agreed to be conveyed. That at the time defendant Ridpath paid his half of said judgment he was led to believe by the plaintiff that the arrangement with the defendant Kern was satisfactory, and either was or would be carried out, and that thereby the whole judgment was or would be satisfied in full. That from the time of the rendition of the judgment up to the time the half thereof was paid the defendant Ridpath was greatly embarrassed financially, and unable to pay the same. The court found as a conclusion of law from the foregoing facts that plaintiff's agreement with defendant Ridpath to satisfy said judgment as to him was without consideration and not enforceable, and ordered that the motion of Ridpath to satisfy said judgment as to him be denied. The respondent interposed a motion to dismiss this appeal for the reason that no statement of facts has been filed or served, that no exceptions to the findings of fact have been taken or filed, and that there is nothing before this court to show upon what the findings of fact or conclusions of law were based by the court below; and quite a lengthy argument is adduced in favor of this motion. But it seems to us to have in it no merit whatever. No statement of facts was necessary, because the facts found by the court are accepted by the appellant. Neither was it necessary under any decision of this court, nor could it be necessary under any theory of the law, for the appellant to except to the findings of fact if he was satisfied with them. The objection urged is that the conclusions of law are not properly drawn from the findings of fact, and the only question which this court can enter into a discussion of is, do the findings of fact sustain the conclusions of law reached by the court? and that is all that is asked by the appellant.

The question, then, to be determined is, will a partial payment of a judgment under the circumstances shown be sufficient to liquidate the judgment in whole? The general principle that the acceptance of a less sum of money than is actually due cannot be a satisfaction, and will not operate to extinguish the whole debt, although agreed by the creditor to be received upon such condition, seems to be well established by almost uniform authority. The theory of the law doubtless is that no benefit accrued to the creditor in accepting a portion of a debt where the debtor was legally bound to pay the whole debt, and that, therefore, there was no consideration for the contract made and entered into by the creditor and debtor for the satisfaction of the judgment or debt by the payment of a part of the same. For many years however, courts have been dissatisfied with this rule, and have refused to extend the doctrine, but have sought...