Schwiete v. Guerre

• Decision Date: 24 June 1913
• Citation: 158 S.W. 402
• Parties: SCHWIETE v. GUERRE et al.
• Court: Missouri Court of Appeals

158 S.W. 402

SCHWIETE v. GUERRE et al.

St. Louis Court of Appeals. Missouri.

June 24, 1913.

1. JUDGMENT (§ 846) — ASSIGNMENT — EXECUTION — INDORSEMENT.

Rev. St. 1909, § 2158, providing that in case of assignment of a judgment, while execution shall issue in the name of the original plaintiff, it shall be indorsed by the clerk or justice to be for the use of the assignee, does not apply where the assignment is after issuance of the execution.

2. COMPROMISE AND SETTLEMENT (§ 6) — JUDGMENT ON STIPULATION.

The judgment on and in accordance with a stipulation that judgment be rendered for plaintiff for $554 and costs, and that the judgment will be satisfied on payment or tender to plaintiff of $300 and costs, if made on or before a certain day, is in the nature of a contract for settlement and compromise of a controversy, and valid, and not one for release of a debt for less than the true amount, which, being without consideration, is void.

3. JUDGMENT (§ 889) — AGREEMENT AS TO SATISFACTION — WAIVER OF TIME OF PERFORMANCE.

Where entry of judgment for a certain amount, with provision that the judgment will be satisfied on tender or payment of a certain less amount, is stipulated, and judgment is entered accordingly, payment within such time may be waived by parol, and without consideration; estoppel being the principle applicable, the extension having been acted on.

4. APPEAL AND ERROR (§ 842) — REVIEW — FINDING OF FACT.

Whether there had been a waiver of time of performance, contained in a stipulation on which judgment was rendered, is one of fact, which, being found on substantial evidence, cannot be reviewed.

5. PAYMENT (§ 74) — RECEIPTS.

Receipts are not conclusive, and cannot prevail against what was the manifest purpose and intention when the payments, for which they were given, were made.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Peter Schwiete against Eugene Guerre and others. Motion to quash an execution was sustained, and plaintiff appeals. Affirmed.

Kurt Von Reppert, of St. Louis, for appellant. B. Greensfelder, of St. Louis, for respondents.

REYNOLDS, P. J.

Plaintiff, appellant here, and defendants entered into a stipulation to the effect that judgment might be rendered by the circuit court of St. Louis County in a certain cause in which appellant was plaintiff and respondents defendants for the sum of $554 and costs, and that the judgment "will be satisfied and acknowledged as satisfied by the plaintiff upon payment or tender to him of $300 and costs of suit if made on or before July 15, 1910, execution to be stayed until July 20, 1910." This was signed by the parties and filed in court. Thereupon, on March 2, 1910, the following entry of record was made: "Ordered by the court in accordance with the stipulation filed herein this day that the judgment entered in favor of said plaintiff and against said defendants for the sum of $554 and costs, be satisfied upon the payment by said defendants to said plaintiff the sum of $300 and costs on or before July 15, 1910, and that execution be stayed until July 20, 1910." Other than this nothing purporting to be a judgment was entered in that cause.

It appears that afterwards, and on the 15th of July, 1910, defendant Eugene Guerre went to the office of the attorney for plaintiff and tendered him $150 on account of this judgment and asked for an extension of time in which to pay the balance. That attorney told him that he could not accept this or grant the extension until he had seen his client, Mr. Schwiete, and that he would let him know about it in a day or so. On the 18th of July Mr. Schwiete called up Mr. Guerre and told him (Guerre) he was coming down town. Guerre and Schwiete agreed to meet at the office of the attorney for the former at half past 4 o'clock that day. The parties met, plaintiff's attorney also being present, and Schwiete being asked by his attorney if he was satisfied to take $150 and extend the execution, said he was. Guerre accordingly paid over to the attorney $150 and plaintiff agreed to give an extension to the 12th of August, same year. Whereupon the attorney for plaintiff gave a receipt in favor of defendants for $150, "on account of judgment rendered and entered of record in Clayton, Missouri, on March 3, 1910, in favor of Peter Schwiete and against Eugene and Estella Guerre; execution extended until August 12, 1910." On the 12th of August Guerre went to the office of the attorney, as he testified, three times in the afternoon but did not find him in. On the 13th of August he again went to the office and met the attorney and paid him $150, that attorney giving him a receipt for "the further sum of $150 on account of judgment in case of Schwiete v. Guerre, in Clayton, Missouri, March 3, 1910." This was signed by the attorney, as attorney for Schwiete. Guerre testified that nothing was said to him about this extension of execution and that all he thought was remaining due were the costs, and he asked the attorney what the costs were. The attorney said that he did not know the amount; that he had paid those costs himself; that it was his own money; that he was going to leave town for the North somewhere and would be back by the first of the next month and would then let Guerre know; but that the attorney had never let him know what the costs were, although he (Guerre) was ready and willing at that time to pay the costs; was willing to have paid them that afternoon; that he afterwards ascertained what the costs were and had paid the costs that had accrued in the case up to September 1, 1910; that nothing was said about anything more being due on the judgment. This is the substance of the testimony for defendants.

The only testimony for plaintiff was given by his attorney, who denied making any arrangements or promises of any kind, and denied that he had accepted the $300 except as set out in the receipts. He testified that he had not mentioned the fact when this last payment was made that defendants still owed a balance; that he had never said a word to Guerre about this and Guerre had asked him nothing concerning it. He was asked if he had led Guerre to believe that he would hold him for the balance of the judgment. He answered, "Plainly so; I don't know what he believed; I cannot read his...