Silander v. Gronna

• Decision Date: 21 June 1906
• Citation: 108 N.W. 544,15 N.D. 552
• Court: North Dakota Supreme Court

108 N.W. 544

15 N.D. 552

JOHN SILANDER v. A. J. GRONNA

Supreme Court of North Dakota

June 21, 1906

Appeal from District Court, Nelson county; Fisk, J.

Action by John Silander against A. J. Gronna. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Fred A Kelley and Scott Rex, for appellant.

Frich & Kelley and Tracy R. Bangs, for respondent.

Failure of wife to join in contract for sale of homestead renders it unenforcible, and bars claim for damages. Weitzner v Thingstad, 56 N.W. 817.

Where parties to a compromise suppose that they are settling a valid claim, this is sufficient. Hansen v. Gaar Scott & Co., 65 N.W. 254. Disputes based on questions of law are subjects of compromise. Pom. Eq. Jur. section 894; 1 A. and E. Enc. Law, 420.

The law favors a compromise and settlements. 8 Enc. 510; Am. & Eng Enc. 711; McGlynn v. Scott, 4 N.D. 18, 58 N.W. 460; Daly v. Busk Tunnel Ry. 129 F. 513.

An agreement to settle and forbear a suit, where there is no legal cause of action is void. Melchoire v. McCarty, 31 Wis. 252; Everingham v. Meighan, 55 Wis. 354; Read v. Hitchings, 71 Me. 594; Bunnell v Bunnell, 64 S.W. 425; Moon v. Martin, 23 N.E. 669.

OPINION

MORGAN, C. J.

Plaintiff brought this action for an accounting and for the release and cancellation of certain mortgages and lines held by the defendant upon his real estate. The defendant answered and set forth all his mortgages, liens, claims and promissory notes against the plaintiff. After a trial the district court made findings of fact and conclusions of law, in defendant's favor. The plaintiff did not perfect an appeal from such judgment. The trial court disallowed a certain claim of $ 75, which the defendant contended should have been allowed as a valid claim in his favor, and against the plaintiff. The facts in regard to that item are set forth in the following findings of fact made by the trial court on its own motion: "That there was included in the note last aforesaid the sum of $ 75, which sum plaintiff agreed to pay defendant Gronna in consideration of his releasing him from all liability under and the cancellation of a certain written contract, theretofore and in December, 1902, entered into between plaintiff and said defendant, whereby plaintiff had agreed to sell and convey to said defendant the real property described in finding 3, and which sum was accepted by the said defendant in full cancellation of said contract, and in full release of plaintiff from all liability thereunder; that at the time said contract was entered into, plaintiff was a married man and the head of a family, which fact was not known to said defendant, and that at said time said real property was the homestead of plaintiff; that the parties at the time it was agreed between them that plaintiff should be released from all liability under said contract and the said contract canceled in consideration of said $ 75 so to be paid and included in said note, did know that as matter of law, said contract was void; that both parties acted in said matter in good faith. Save only as hereinbefore found, the said note was given for a full and adequate valuable consideration."

The defendant appealed from the judgment and asks to have the judgment modified to the extent only of allowing that item in his favor. No statement of the case was settled. The facts stated in the finding must therefore be taken as true and proven. There is no dispute as to the facts, but it is defendant's contention that the conclusion of law that defendant is not entitled to have the item of $ 75 allowed in his favor is not sustained by the facts found. The pivotal question to be considered is whether there was a valid consideration between the parties for plaintiff's promise that he would pay defendant $ 75 for a release of the contract for the conveyance of plaintiff's land to the defendant. Plaintiff contends that the contract was void and made under a mutual mistake of law. Defendant contends that the promise was based on a valid consideration arising out of the compromise of a disputed question between the parties. It is conceded that if the finding shows a compromise of a disputed question, which arose in good faith between the parties, there was a valid consideration. Does the finding show that there was a compromise of a disputed question actually and in good faith existing between the parties? The language of the finding will not warrant any such conclusion. There is nothing in the finding from which a conclusion that there was a dispute between the parties can be drawn. That there must be a bona fide dispute as to some question before the principles of law pertaining to compromises become applicable is well settled. McGlynn v. Scott, 4 N.D 18, 58 N.W. 460; Fryer v. Cetnor, 6 N.D. 518, 72 N.W. 909; Greenlee v. Mosnat, 116 Iowa 535, 90 N.W. 338; Hansen v. Gaar Scott Co. (Minn.) 63 Minn. 94, 65 N.W. 254; Dolcher v. Fry, 37 Barb. 158; Moon v. Martin (Ind. Sup.) 122 Ind. 211, 23 N.E. 668; Gray v. U.S. Savings & Loan Co. (Ky.) 116 Ky. 967, 77 S.W. 200. A compromise can be made as a matter of law only when the parties disagree among themselves as to their respective rights. A promise to pay a certain sum as a release of a contract is not necessarily a compromise of a disputed right or question. It does not signify that the promise was made after the parties had yielded a part of their claims and mutually agreed that payment of that sum was agreed upon as a settlement of the dispute. There is nothing in the language of the finding that is inconsistent with the fact that each one of the parties agreed that $ 75 actually represented defendant's damage in surrendering the contract, and plaintiff's benefit from such surrender. The finding does not show that the parties considered that there was any dispute or doubt as to their respective rights under the contract. It shows a promise to pay $ 75 in...