Odell & Kleiner v. Heinrich

• Decision Date: 19 April 1920
• Docket Number: 344
• Citation: 221 S.W. 865,143 Ark. 435
• Parties: ODELL & KLEINER v. HEINRICH
• Court: Arkansas Supreme Court

221 S.W. 865

143 Ark. 435

ODELL & KLEINER v. HEINRICH

No. 344

Supreme Court of Arkansas

April 19, 1920

Appeal from Arkansas Circuit Court, Northern District; W. B Sorrells, Judge; affirmed.

Affirmed.

O. M Young and Harry E. Meek, for appellants.

1. The offer of Odell & Kleiner did not contain any promise to pay the court costs and attorney's fees in addition to the $ 1,400. The telegram did not expressly nor impliedly show any such promise. The costs and fees were liens under the decree and there could be no satisfaction of the decree until these liens are discharged. Kirby & Castle's Digest, §§ 463, 5187, 5189; 135 Ark. 22. Under the offer there was no agreement to pay the costs and attorney's fees. 61 Tenn. 141. The assignor of a decree impliedly warrants his title. 23 Cyc. 1350.

2. Appellants, having knowingly paid the disputed items, can recover the amounts thus paid. Where one pays money he does not owe under the circumstances of this case, the payment is not voluntary but compulsory or under duress, and it may be recovered. 9 Cyc. 443; 30 Id. 1303; 2 L. R. A. (N. S.) 374. The amounts paid under protest were not to Heinrich but to third parties entitled to receive the same and the rule as to voluntary payments does not apply.

3. The agreement on the part of Heinrich was not void for want of consideration. 84 Hun 325; 32 N.Y.S. 373.

Clyde E. Pettit, for appellee.

1. If there was any ambiguity in the contract, it should be resolved against appellants, but there surely is none. It is plain that Heinrich thought he was accepting an offer of $ 1,400 for his interest in the decree, and the court costs and attorney's fees were to be paid by appellants. A principal who confers an ambiguous authority upon an agent is bound by the construction placed upon the authority by the agent in good faith and the party dealing with him. There was no duress or compulsion. 98 Am. Dec. 382.

2. The court sitting as a jury found that Heinrich did not contract to take $ 1,400 and pay the costs and attorney's fees, and the finding is justified by 61 Tenn. 141. A voluntary adjustment of a matter in dispute or compromise of disputed matter terminates the matter finally, even where there is a protest. 46 Ark. 217; 74 Id. 270. There were no allegations of fraud or concealment in the complaint. Voluntary payments can not be recovered. 130 Ark. 520; 102 Id. 152; 86 Id. 175; 18 L. R. A. (N. S.) 124; 234 Ill. 635; 85 N.E. 200. The lower court found there was no duress. The compulsion or duress must furnish the motive for making the payment. 18 Cal. 265; 70 Am. Dec. 176; 234 Ill. 535; 85 N.E. 200; 18 L. R. A. (N. S.) 124; 107 Ark. 24; 21 R. C. L. 145. The motive here did not proceed from the alleged compulsion, supra, but from a third party. 107 Ark. 24; 46 Id. 363; 65 Id. 157.

OPINION

MCCULLOCH, C. J.

Appellee obtained in the chancery court of Arkansas County two decrees for the foreclosure of vendor's liens aggregating the sum of $ 2,225.11, on certain tracts of real estate in that county. The liens were declared by the court to be in conjunction with other liens of like nature in favor of other claimants, all to be paid pro rata out of the proceeds of the sale ordered to be made by the commissioner. The cost of the foreclosure, including a fee for the commissioner and the expenses of advertising the sale, amounted to $ 142.70, and there was a fee of $ 140 due to the attorneys for appellee for services rendered in procuring the foreclosure.

The legal title to the lands on which the liens rested was in one Johnson as trustee for appellants, Odell & Kleiner. Appellee resided in California, and was represented in the foreclosure suit by attorneys in Arkansas County. After decrees were rendered appellee executed a power of attorney to one Enders, empowering the latter to direct a foreclosure sale by the court commissioner and to purchase the lands at said sale for appellee. Appellants were negotiating with one Stroh for the sale of the lands, and they applied to Enders as the agent of appellee to open negotiations for the extinguishment of appellee's claim against the lands. They submitted an offer to appellee contained in a telegram sent by Enders to appellee in the following words:

"Have offer fourteen hundred dollars cash for your interest in Odell Land Company matter. Would recommend acceptance of this as could not get more in case of sale. This would wind the entire matter up. Answer wire."

The message was directed to appellee at his home in California, and was signed by Enders. This was on August 11, 1917, and two days later appellee sent to Enders by telegraphic message the following reply:

"Accept fourteen hundred if you can do no better."

Appellants knew the contents of the message of Enders to appellee and were informed by Enders of the contents of appellee's reply message, and Enders indicated to appellants the acceptance of the offer of $ 1,400. There had been no sale by the commissioner, and appellants proceeded in the negotiations with Stroh for the sale of the land, and closed the deal with the latter by contract. Later appellants offered to pay appellee the sum of $ 1,400 for full release and satisfaction of the decrees in appellee's favor, but appellee refused to give a release from the decrees except upon payment of the amount of costs due in the case and also the amount due...