Gasper v. Mayer

• Decision Date: 09 April 1935
• Docket Number: Case Number: 22640
• Citation: 171 Okla. 457,1935 OK 388,43 P.2d 467
• Parties: GASPER v. MAYER
• Court: Oklahoma Supreme Court

1935 OK 388

43 P.2d 467

171 Okla. 457

GASPER v. MAYER

Case Number: 22640

Supreme Court of Oklahoma

Decided: April 9, 1935

Syllabus

¶0 1. ACCORD AND SATISFACTION - Acceptance of Part of Liquidated Claim in Discharge of All not Binding on Creditor.

An agreement to accept, or the actual acceptance of part of a past-due liquidated claim in discharge of the whole without other consideration is not binding upon the creditor as a discharge of the amount remaining unpaid.

2. SAME - "Liquidated Claim" Defined.

The term "liquidated claim," as used in the preceding paragraph, means made certain as to what and how much is due; made certain by agreement of the parties, or by operation of law.

3. SAME - Final Judgment Fixing Amount Due.

The final judgment of a court of record fixing the amount due on a claim or demand arising from contract or tort constitutes a liquidated claim.

4. SAME - "Accord and Satisfaction" Defined.

An "accord and satisfaction" is an executed agreement whereby one of the parties undertakes to give, and the other to accept in satisfaction of a claim arising either from contract or tort, something other or different from what he is or considers himself entitled to.

5. SAME - Necessity for Pleading Defense.

Accord and satisfaction, and other transactions closely allied thereto, such as a compromise agreement, executory accord and novation, in order to be available as a defense, must be specifically pleaded.

6. JUDGMENT - One of Two Joint Judgment Creditors not Authorized to Release and Discharge Interest of Other.

Where two parties sue and obtain a judgment in a court of record, not as partners but simply as joint owners of a claim or demand arising from contract or tort, one of said parties may not, without express authority, release and discharge the interest of the other party therein.

Appeal from District Court, Oklahoma County; Porter Newman, Judge.

Action by J.G. Gasper and Chas. H. Garnett against D.A. Mayer, Calvin M. Rosser, T.R. Johnson, Daniel L. Mayer and B.H. Russell. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Chas. H. Garnett, for plaintiffs in error.

John B. Harrison and C.S. Gilkerson, for defendants in error.

PER CURIAM.

¶1 The parties will be referred to as they appeared in the lower court, plaintiffs in error as plaintiffs, and defendants in error as defendants.

¶2 This action was commenced in the district court of Oklahoma county on September 4, 1930, by plaintiffs, to recover from defendants the balance claimed to be due on a judgment rendered in the district court of Beckham county, Okla. Plaintiffs allege that on August 21, 1917, plaintiff J.G. Gasper and one W.C. Burger jointly obtained a judgment against all of the defendants in the district court of said Beckham county, Okla., for the sum of $3,382.76; that on May 18, 1920, the defendant Calvin M. Rosser paid to the said W.C. Burger the sum of $250; that said sum should be credited upon said judgment; that on May 19, 1922, the said W.C. Burger, for a valuable consideration, sold and transferred all of his right, title, and interest in said judgment to the plaintiff Chas. H. Garnett; that on November 23, 1917, October 14, 1919, and October 14, 1924, executions were issued on said judgment; that each and all of said executions were returned unsatisfied; that no execution has been issued since October 14, 1924, and that said judgment became dormant on October 14, 1929; that plaintiffs were the owners of said judgment; that no payment had been made thereon excepting the payment to W.C. Burger on May 18, 1920; and prayed for judgment against the defendants for the sum of $3,382.76, less the credit of $250; and the judgment upon which the suit was based was attached as an exhibit to the petition and introduced in evidence.

¶3 To this petition defendants filed an answer admitting that the judgment was obtained in the district court of Beckham county, but pleaded as a defense that, on May 18, 1920, one of the defendants, Calvin M. Rosser, acting for all of said defendants, settled and compromised said judgment by paying the plaintiffs Burger and Gasper, a partnership composed of W.C. Burger and J.G. Gasper, the sum of $250 in full and complete settlement of said judgment, and thereupon obtained a release thereof, which release was filed with the clerk of the district court on May 20, 1920.

¶4 Plaintiffs filed a reply to this answer, admitting the execution of the written release of the judgment by the plaintiff W.C. Burger, and denied that on the date of the execution of such release the said W.C. Burger and the plaintiff J.G. Gasper were partners, or had been for five years prior thereto; denied that said W.C. Burger had the authority to execute said release for and on behalf of the plaintiff J.G. Gasper or to accept payment of said judgment; denied that said release was sufficient to cancel and release said judgment, and alleged that the attorneys for the judgment creditors, W.C. Burger and J.G. Gasper, had a lien for their attorneys' fee in the sum of 50 per cent. of said judgment; that notice of said claim and lien for attorneys' fees had been given, and that the said W.C. Burger was without any authority to release said lien.

¶5 The issues involved in this action were disclosed in the following colloquy between the court and counsel when the cause was called for trial:

"The Court: What is the this lawsuit about? Mr. Garnett: This is an action brought in this court upon a judgment as the basis of the plaintiffs' cause of action obtained in the district court of Beckham county, in 1917, and which has been kept alive by the issuance of successive executions within five years from the date of the judgment and within five years of each other. We simply bring this suit on that judgment to recover a new judgment in this court against the judgment debtors in that judgment. The Court: What is the defense? Mr. Gilkerson: We admit the judgment and the executions, but say that we have settled with the plaintiffs for said judgment in full and have their release and satisfaction in writing. I think we admit the judgment in our answer and we rely on the written release and settlement. The Court: What do the plaintiffs have to say to that? Mr. Garnett: The plaintiffs say that the release is not sufficient in law to satisfy and release the judgment, and is not binding on the plaintiffs here in any event, or at least not upon the plaintiff Gasper, by reason of the facts under which it was obtained. The Court: All right, put in your evidence."

¶6 Plaintiffs thereupon introduced in evidence the judgment of the district court of Beckham county, four executions with returns showing no property found, a page of the appearance docket of the district court of Beckham county, and the assignment of the judgment dated May 19, 1922. In this assignment, Burger, in consideration of the sum of $25 and a release and satisfaction of an indebtedness of $1,000, transferred all of his right, title and interest in and to said judgment to Chas. H. Garnett, one of the plaintiffs herein. It was further recited that Burger and Gasper, as joint plaintiffs, recovered a judgment against all of the defendants, and that Burger had been paid the sum of $250 by Calvin M. Rosser, one of the defendants herein.

¶7 The defendants introduced a release of the judgment, dated May 18, 1920, executed by W.C. Burger. This release was signed "Burger & Gasper (a copartnership composed of W.C. Burger and J.G. Gasper) by W.C. Burger;" and to the left: "Percy Powers, attorney for judgment creditors."

¶8 The paragraphs purporting to release and discharge said judgment were as follows:

"Now, therefore, we Burger & Gasper (a copartnership composed of W.C. Burger and J.G. Gasper) in consideration of the sum of two hundred and fifty and no/100 ($250) dollars, do hereby release and forever remise all our right, title and interest in and to said judgment, as well as all further or subsequent judgments or liens thereby. We also forever release any and all claims of whatsoever nature or kind, and wherever found, that we may hold or own against said Calvin Rosser and D.A. Mayer.

"We further authorize the court clerk of Beckham county, Okla., to fully release and discharge the said judgments upon the judgment docket of said court."

¶9 In addition to these documents, Mr. Garnett, counsel for plaintiffs, made a statement in detail of the facts which plaintiffs expected to prove. The facts stated were substantially as follows: That the release of judgment was not a sufficient defense because it recited a consideration of only $250, which was everything of value that was in fact received and the sole consideration; that the attorney, Percy Powers, whose name appears on the release as attorney for judgment creditors, was not and had never at any time been attorney for plaintiffs; that E.C. Marianelli and Mr. Garnett were attorneys for Burger and Gasper and were to receive 50 per cent. of whatever amount was collected from the defendants; that judgment was first obtained in cause No. 676 in the district court of Beckham county in a replevin action, wherein Burger and Gasper were defendants, and that subsequently suit was brought for Burger and Gasper against the defendants herein as principals and sureties on the replevin bond, and judgment obtained upon which the present suit is based; that plaintiffs herein knew nothing about the release of judgment executed by Burger until long after the same was executed and filed in the office of the court clerk of Beckham county; that Calvin M. Rosser, one of the defendants, went to Burger, who was then living in Mangum, Greer county, and obtained a release for $250; that Burger was at the time hard pressed, and Rosser paid Percy Powers a fee for obtaining such release; that Burger and Gasper were not partners at the time of the release, nor at the time the judgment sued on herein was obtained, and had not been partners for a long time...