Gering v. Sch. Dist. No. 28, Cass Cnty.

• Decision Date: 22 March 1906
• Citation: 76 Neb. 219,107 N.W. 250
• Parties: GERING v. SCHOOL DIST. NO. 28, CASS COUNTY.
• Court: Nebraska Supreme Court

76 Neb. 219

107 N.W. 250

GERING

v.SCHOOL DIST. NO. 28, CASS COUNTY.

Supreme Court of Nebraska.

March 22, 1906.

Syllabus by the Court.

A compromise, whereby one party agrees to pay and the other to receive a certain sum in satisfaction of a doubtful claim, rests upon a sufficient consideration.

But if the claimant, knowing that his claim is groundless, forces the other party to a compromise by threats of suit, there is no consideration, and the compromise will not be enforced.

Forbearance to prosecute proceedings for the reversal of a judgment is a sufficient consideration for a compromise, and unless the good faith of the claimant in pressing his claim is put in issue, whether he intended to prosecute such proceedings is immaterial.

One of the essentials of a judgment offered in support of a technical plea in bar is that it was rendered in a suit involving the same subject-matter as that in which the plea is interposed, and, lacking that element, it is not available in support of such plea.

Where the second action is on a different claim or demand, the judgment in the former operates as an estoppel only as to those matters in issue upon the determination of which the judgment was rendered.

In such cases the rule is that, if there be any uncertainty in the record as to the issues actually tried or adjudicated in the former suit, the whole subject-matter of the action will be at large, unless the uncertainty be removed by extrinsic evidence, and the burden of proof is upon the party relying upon the estoppel to show that a question raised in the present suit was litigated and determined in that in which the judgment was rendered.

In an action upon the promise of a school district to pay a certain amount in composition of a doubtful claim, one of the defenses was that the claimant secured the adoption of a resolution for the compromise by threats and intimidation, and there is evidence tending to support such defense. Held, that evidence as to his reputation in the vicinity, as to being peaceable or otherwise, was properly received.

Declarations of parties made at a meeting where such resolution was adopted, tending to show that they were intimidated and for that reason left the meeting and refrained from voting on the resolution, are properly receivable in evidence as a part of the res gestæ.

Commissioners' Opinion. Department No. 2. Error to District Court, Cass County; Jessen, Judge.

Action by Matthew Gering against School District No. 28, Cass county, Neb. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

A. N. Sullivan and Jesse L. Root, for plaintiff in error.

Byron Clark, for defendant in error.

ALBERT, C.

From July, 1894, to July, 1897, C. Lawrence Stull was treasurer of defendant school district. At the close of his term he attempted to retain certain funds of the district to pay himself for labor performed for the district and interest paid on its registered warrants. Stull and his surety were sued for funds thus retained. A counterclaim and set-off for the amount of Stull's claim was interposed. In the district court Stull confessed and paid judgment for the amount of the defendant's claim. The costs accrued to that time amounted to $32.79. Immediately thereafter the suit proceeded on Stull's claim against the district, terminating in a verdict for defendant. The costs incurred in that contest amounted to $158.84. June 1, 1899, a motion for a new trial was overruled, and judgment rendered on said verdict. The annual meeting of the electors of defendant district in 1899 was held June 26th. There was presented to and adopted by said electors a resolution reciting the litigation between defendant and Stull, and instructing the school board of defendant to settle with said Stull by paying him the sum of $61.25 and all the costs in said suit. Mr. Stull, thereupon, forbore to prosecute error proceedings to this court, and thereafter the moderator and director of the district executed a warrant for the sum of $252.88, including therein not only the $61.25 due Stull, and the costs of the action, $158.84, which Stull had not paid, but the $32.79 adjudged against Stull at the time he confessed judgment in favor of the district. The treasurer refused to pay or register this warrant. Stull sought to compel by mandamus the registration of said warrant. The court refused the writ because the warrant was for a greater sum than the district was liable for under its settlement, and because Stull had not paid the $158.84. Thereafter, to prevent sale of his property on execution, Stull paid the costs, $158.84, the district was to pay, and the $32.79 he was liable for. A second mandamus suit was disposed of because the district had not authorized a warrant in the sum of $252.88. Stull thereafter became indebted to plaintiff and sold and assigned to him his claim against defendant. In the county court Judge Douglass rendered judgment in favor of Mr. Gering. In the district court one jury disagreed, but at the November, 1904, term of said court a verdict was rendered in favor of the school district. The petition embraces the facts just stated, and prays judgment against the defendant school district. Among other matters set up in the answer, are the following: “Defendant further denies that at the time the alleged resolution was pretended to have been passed that there was any school district meeting, or election of said district, in session; but in this alleges that said school district meeting, by reason of the threats and intimidations of said Stull, was adjourned, and a majority of the electors had returned to their homes through fear. * * * And that if any such resolution was passed, it was passed after said meeting had adjourned and said electors were driven away by the actions of the said Stull and others with him, and that said resolution was never adopted or passed by said district, or a majority of the lawful electors thereof, either at said meeting or any other time.” The defendant also pleads an estoppel, based on the two judgments in the proceedings in mandamus. The cause was tried to a jury, who returned a verdict for the defendant. The plaintiff prosecutes error.

From the foregoing statement, it will be seen that the consideration relied upon by the plaintiff to support the alleged settlement between Stull and the school district, was the abandonment of his right to prosecute error to this court from the judgment dismissing his action against the district and for costs, rendered in the district court of Cass county, on the 1st day of June, 1899. The court instructed the jury that there were five issues of fact involved in the case, and which they were called upon to determine, and that the burden of proof was upon the plaintiff to establish each of such issues by a preponderance of the evidence. One of such issues was thus stated by the court in its instructions to the jury: “Was C. Lawrence Stull, on or about the 26th day of June, 1899, intending and preparing to have reviewed in the Supreme Court of Nebraska, in the ordinary manner, a judgment rendered against him in the district court of Cass county, Nebraska, June 1, 1899, in which case the said Stull was plaintiff and school district 28, in Cass county, Neb., was defendant?” It seems clear to us that the trial court erred in submitting the foregoing question to the jury. It is well settled, in fact is elementary, that the compromise of doubtful claims is valid, the mutual release of their respective rights, by the parties, and the avoidance of the expense and annoyance of litigation being a sufficient consideration for the composition. But, it is also elementary, that to render such compromise valid, the parties must concur in supposing the right to be doubtful, for if the claimant, knowing his demand to be groundless, forces the other party to a settlement by threats of suit, the compromise will not be upheld. Fitzgerald v. Fitzgerald, 44 Neb. 463, 62 N. W. 899; Prater v. Miller, 25 Ala. 320, 60 Am. Dec. 521; Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453;Tucker v. Ronk, 43 Iowa, 80. If Stull's bona fides, in asserting his claim against the school district, had been put in issue, we can readily see, in the light of the foregoing rule, how his intentions with respect to prosecuting an appeal would be material. But no such theory was submitted to the jury; that is to say, no instructions were given covering the theory that his claim was groundless, and that he, knowing it was groundless, forced a compromise by threats of further litigation. In fact, in more than one instruction the court recognized Stull's forbearance to prosecute error as a sufficient consideration to support the compromise contemplated by the resolution adopted at the school meeting. But, in each of such instructions, the jury were told, in effect, that the validity of the...