Greenlee v. Mosnat

• Decision Date: 14 May 1902
• Citation: 90 N.W. 338,116 Iowa 535
• Parties: GREENLEE v. MOSNAT.
• Court: Iowa Supreme Court

116 Iowa 535

90 N.W. 338

GREENLEE

v.MOSNAT.

Supreme Court of Iowa.

May 14, 1902.

Appeal from district court, Benton county; G. W. Burnham, Judge.

The plaintiff employed defendant to collect the indemnity owing him on five policies of insurance, which the latter succeeded in accomplishing, after extended litigation. See Greenlee v. Insurance Co., 102 Iowa, 427, 71 N. W. 534, 63 Am. St. Rep. 455; Same v. Insurance Co., 102 Iowa, 260, 71 N. W. 224; Same v. Insurance Co., 103 Iowa, 484, 72 N. W. 676; Same v. Insurance Co., 104 Iowa, 481, 73 N. W. 1050. The claim against the Dubuque Fire & Marine Insurance Company was determined by the decision first mentioned. On the four policies other than that of the Hanover Insurance Company the defendant had collected, November 12, 1897, the sum of $16,083.57. Of this he then paid a lienholder $6,700, and plaintiff $2,500. November 20th following he paid plaintiff $4,004.75, and in his answer pleaded that this involved a full settlement for his services. June 15, 1898, he received from the Hanover Insurance Company $2,461.51, which, less $18.18 for expenses, he turned over to plaintiff. The object of this action was to recover the difference between 10 per cent. of the amount collected, alleged to be the compensation that defendant was to receive, and the amount by him retained. Verdict and judgment for the plaintiff. The defendant appeals. Reversed.Tom H. Milner, C. Nichols, and J. J. Mosnat, for appellant.

C. W. E. Snyder and Gilchrist, Whipple & Montgomery, for appellee.

LADD, C. J.

Whether defendant agreed to collect the amounts owing plaintiff on the policies of insurance for a compensation of 10 per cent. of the amount received was in dispute, and was the only issue submitted to the jury. The defendant pleaded an accord and satisfaction, and testified, in substance, that on November 12, 1897, Greenlee first inquired what his charge would be, and was told that Mosnat would retain the accrued interest as compensation for his services, and pay over the face of the policies; that a few days afterwards Greenlee asserted that the charge was to be 10 per cent. of the amount collected, and demanded payment of all save such percentage; that this was denied by himself, was untrue, and payment refused; that, on the 20th of November following, Greenlee came to his office and said he guessed he would take the money, and wanted to know how much it was, and Monsat responded, “I will give you a check of $4,004.75 in full of what is due you, and if you want to take it, and call it square, you can have it,” to which Greenlee replied it was charging him considerable, and that thereupon Monsat explained how much he had done; that Greenlee responded, “Give me the check;” that he told Greenlee the amount of the check was all he would give him, and, if he wanted to accept that in satisfaction, he could take it,--otherwise he might leave it; and that Greenlee took the check, and one for $50, which he had advanced. The amount retained was $2,878.82, whereas 10 per cent. of all then collected would have been but $1,608.35. If that subsequently paid by the Hanover Insurance Company be included, $18.18 should be added to the first sum, and $246.15 to the last. According to the defendant's testimony, then, which the jury may have accepted, there was a dispute as to which of two amounts he was entitled as compensation for his services, and the controversy was adjusted by paying over all save what he claimed. It is not important that the jury decided the contention as to the agreement in favor of the plaintiff. That indicated merely what he might have recovered, had he resorted to an action at the outset. If there was a valid compromise, the law will not inquire into the merits of the respective claims. Nor does such finding, as suggested by appellee, determine that the compensation to be paid for defendant's services was liquidated, within the meaning of the law relating to accord and satisfaction. “If there be a bona fide dispute as to the amount due, such dispute may be the subject of a compromise and payment of a certain sum in satisfaction of the entire claim.” Railroad Co. v. Clark, 178 U. S. 354, 20 Sup. Ct. 924, 44 L. Ed. 1099. As related to the subject of accord and satisfaction, the term “liquidated,” as applied to a claim, means one where the amount due has been ascertained and agreed upon by the parties, or is fixed by operation of law. Kercheval v. Doty, 31 Wis. 485; Hargroves v. Cooke, 15 Ga. 321; Treat v. Price (Neb.) 66 N. W. 834; 1 Cyc. Law & Proc. 334. When not so determined, it is the subject of compromise. To avoid any confusion in the definition of the word, the books quite generally refer to disputed as well as liquidated claims as those which may be adjusted without full payment. In Nassoly v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695, the court touched several of the points argued by appellee in this case: “A demand is not liquidated, even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of the term as applied to the subject of accord and satisfaction. Such is the case before us, as appears from the testimony of plaintiff already quoted. He claimed that the defendants owed him the sum of $1,500, under the agreement to pay him at one rate,...