City of Rawlins v. Jungquist
| Decision Date | 23 June 1908 |
| Citation | 16 Wyo. 403,94 P. 464 |
| Parties | CITY OF RAWLINS v. JUNGQUIST |
| Court | Wyoming Supreme Court |
Original Opinion of March 21, 1908, Reported at: 16 Wyo. 403.
Petition for rehearing denied.
L. E Armstrong and Chris Mathison, for defendant in error. (On petition for rehearing.)
Though it will be presumed that a general settlement included all matters of difference between the parties, there is no presumption of a general settlement; whether or not there has been a general settlement is a matter of proof with the burden upon the party alleging it. The proof in the case at bar failed utterly to show such a settlement, and the plaintiff's acceptance of the amount allowed was not with knowledge or notice that the remainder of the claim had been rejected, and hence the case does not come within the rule of accord and satisfaction upon payment and acceptance of a part in full settlement. (11 Cyc., 599, and cases cited.)
It is the unquestionable rule that parties may settle not only substantive items of a single cause of action, but elements of general damage.
Whether there has been a settlement in full is a question of fact. (Hinkle v. Ry. Co., supra; Anderson v. Granite Co. (Me.), 43 A. 21; Spokane v. Costello (Wash.), 84 P. 652; Green v. County, supra; Coal Co. v. Parlin (Ill.), 74 N.E. 143; Johnson v. Bards (Ia.), 106 N.W. 609.)
There being no presumption of law that a general settlement occurred, the fact would not be established in this case without showing that the plaintiff knew that the balance of his claim had been rejected, and there is no evidence in the case of any such knowledge on his part. To constitute an accord and satisfaction it is necessary that the payment be offered in satisfaction under such circumstances that the party to whom it is tendered takes it subject to such condition. (Beaver v. Porter (Ia.), 105 N.W. 346.) That the burden of proof was on the defendant seems to be clear. (Bray v. Bray (Ia.), 103 N.W. 477; Franks v. Matson (Ill.), 71 N.E. 1011.)
While the city attempted to plead and prove a general settlement, yet no contract (complete in itself) importing to settle all differences (Freeman v. Freeman (Mich.), 35 N.W. 897) has been shown; nor has it been shown that all the liability was in contemplation of the parties at the time or that there was a purpose in making such payment to settle all of their mutual differences. (Spokane v. Costello, 84 P. 652.) Though the defendant pleaded a general settlement, he must prove it; and it is competent for the plaintiff to show the contrary, and even that certain items were not included in a settlement. (Dudley v. Iron Co., 13 O. St.; Ins. Co. v. Siebert (Ind.), 56 N.E. 686.)
The retention of the amount paid proves nothing, unless it was paid and accepted in full settlement. (7 Cur. L., 13, 16; Caine v. Life Asso'n., 115 Ill.App. 307; Creighton v. Gregory (Cal.), 75 P. 569; Greenlee v. Mosnat (Ia.), 90 N.W. 383; Neely v. Thompson (Kan.), 75 P. 117.)
The defense of accord and satisfaction must be specially pleaded. The plea in this case was a mere legal conclusion, and, therefore, insufficient, and the objection to evidence under the plea sufficiently raised the question. (Renihan v. Wright (Ind.), 25 N.E. 822; Sheets v. Russell (Ind.), 40 N.E. 30; Eachus v. Ry. (Cal.), 37 P. 750.) If the proof had gone in without objection the failure to specially plead the defense would not be waived in the absence of a verdict or finding sustaining it. (Wilkerson v. Bruce, 37 Mo.App. 156; Dailey v. Asso'n. (Mich.), 95 N.W. 326.) The plea of payment amounted only to a set-off. (Hedlun v. Min. Co. (S. D.), 92 N.W. 301; 1 Cyc., 341, 342.) That the allegations were insufficient to constitute a defense of accord and satisfaction, see Heath v. Doyle, 18 R.I. 252; Karter v. Fields, 140 Ala. 352; Towry v. U.S. 42 F. 207; Johnson v. Hunt, 81 Ky. 321; Canal Co. v. Van Vorst, 21 N.J.L. 100; Bird v. Carital, 2 Johns., 342; Hogan v. Burns (Cal.), 33 P. 631.) Evidence of accord and satisfaction is not admissible under plea of payment. (Wallace v. Chandler, 16 Ark. 651; Johnson v. Neimeyer, 10 Ind. 350; Hamilton v. Coons, 35 Ky. 317; Adm'rs. v. County (Ky.), 90 S.W. 1054; Rutan v. Huck (Utah), 83 P. 833.)
The council, in the case at bar, treated the items allowed as distinct damages and failed to act on the part of the claim for depreciation in the value of the property. The latter was left open.
Should reversal be adhered to, the cause should be remanded for new trial.
Charles E. Blydenburgh, for plaintiff in error, submitted the following points and authorities upon the question whether upon reversal the cause should be remanded for new trial or with direction to enter judgment for plaintiff in error, the defendant below, and contended that judgment should be directed:
It would be incompetent to alter the effect of the record of the action of the city board in relation to the claim of defendant in error by parol testimony. (Aurora v. Fox, 78 Ind. 1; Childrey v. City, 11 L. R. A., 315; Yavapai Co. v. O'Neil, 29 P. 430; Cory v. Hamilton, 51 N.W. 54; Whitehead v. Sch. Dist., 22 A. 991; Lowell v. Wheelock, 11 Cush., 391; Morrison v. Lawrence, 98 Mass. 219; In re Buffalo, 78 N.Y. 362; Johnson v. Co., 12 Neb. 28; Company v. Tierney, 47 Ill.App. 840; Taylor v. Henry, 2 Pick., 397; Methodist v. Herrick, 25 Me. 354; Gilbert v. City, 40 Conn. 102; Baker v. Scofield, 58 Ga. 182; Clark v. Robinson, 88 Ill. 498; Hall v. Jackson Co., 95 Ill. 352; Moor v. Newfield, 4 Me. 44; Small v. Pennell, 31 Me. 267; Medlin v. Platte Co., 8 Mo. 235; Maupin v. Franklin Co., 67 Mo. 327; Greely v. Quinby, 22 N. H., 335; Meeker v. Van Rensselaer, 15 Wend., 397; Thompson v. Smith, 2 Denio, 177; Cabot v. Britt, 36 Vt. 349; Eastlind v. Fogo, 58 Wis. 274.) It cannot be said, therefore, that a new trial will bring out any further facts upon the point in issue.
It is a fundamental proposition that where a litigant has had an opportunity to present evidence of which he should have knowledge, and has failed to do so, a new trial will not be allowed for the purpose of allowing him to introduce such evidence or to produce cumulative or other evidence. Section 4265, Revised Statutes 1899, is mandatory and applies here requiring either the rendition of a proper judgment by the appellate court or that the lower court be directed to render the same. (R. R. Co. v. Simpson, 5 Ohio St. 251; Bunn v. Kinney, 15 Ohio St. 40; Higgins v. Higgins, 57 Ohio St. 239; Ins. Co. v. Church, 21 Ohio St. 492.)
Under the record in this case all of the findings of fact might stand and yet the judgment would have to be reversed on account of error in the conclusions of law and in applying the law to the facts found. The record is before the court and from that record the judgment the district court should have rendered is evident, viz.: dismissal or for the defendant, and this is the judgment that has been rendered by the supreme court, and we can see no reason why it should be modified in any way, or that the case should be remanded for a new trial. The ends of justice could not in any way be subserved thereby.
ON PETITION FOR REHEARING.
The defendant in error has filed a petition for a rehearing and insists thereby not only that the points involved in the case were incorrectly decided, but that upon the conclusion reached the court should have remanded the cause for a new trial instead of directing judgment.
1. In the brief in support of the petition we find again discussed the effect of plaintiff's acceptance of the amount allowed by the city upon his bill presented in 1902, and it is again insisted that the circumstances do not show a payment and acceptance in satisfaction of the entire claim. That question is fully considered in the former opinion and but little further comment respecting it seems necessary.
Plaintiff presented to the city a claim for unliquidated damages. So far as this case is concerned he had nothing but an unliquidated demand. Moreover, it seems to have been disputed. At least a part only was allowed, and in this suit upon the claim it was contested upon the ground, among others, that there was no liability on the part of the city for any of the damages alleged. The rule, therefore, to be applied to the allowance and acceptance of a part of the claim is the well settled one that payment and acceptance of a less sum than claimed, in satisfaction of an unliquidated or disputed claim, operates as an accord and satisfaction. .) That the claim presented was for the entire demand seems to be clear, and was practically admitted by the plaintiff in his testimony. The bill contained several items, it is true, but they were each and all claimed as a result of the same cause or injury, viz.: as damages on account of grading, as stated in the bill, or, as set out in the suit, on account of a change in the grade of the streets adjoining plaintiff's property. That the claim was unliquidated is not denied, nor could it be. That part had been allowed and accepted is conceded. The only controverted question of fact, therefore, in reference to this matter was and is whether the payment and acceptance was in full satisfaction of the damages claimed. The solution of that question depends upon the evidence and the inferences to be necessarily drawn therefrom.
The evidence upon the question, though meager, is not conflicting. It consists principally of the bill as...
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