Southwick v. Herring

• Decision Date: 23 January 1901
• Citation: 84 N.W. 1013,82 Minn. 302
• Parties: SOUTHWICK v. HERRING.
• Court: Minnesota Supreme Court

82 Minn. 302

84 N.W. 1013

SOUTHWICK

v.HERRING.

Supreme Court of Minnesota.

Jan. 23, 1901.

Appeal from district court, Faribault county; Lorin Cray, Judge.

Action by O. F. Southwick against Joseph Herring. Verdict for defendant. From an order denying judgment notwithstanding the verdict, or a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

Action on a promissory note, in which the defense was that the note was extinguished by the settlement and dismissal of a former action between the same parties. Held, that the trial court did not err in receiving oral evidence as to the settlement, nor in its instructions to the jury as to such settlement, and that the verdict to the effect that the note was so extinguished is sustained by the evidence. Henry A. Morgan, C. E. Southwick, and Frank E. Putnam, for appellant.

Severance & Andrews, for respondent.

START, C. J.

Action on a promissory note, dated November 1, 1876, for $110, with interest at the rate of 12 per cent. per annum, payable to the order of J. S. Fellows, and executed by the defendant. The complaint alleged the making of the note and its transfer to the plaintiff. The answer admitted the execution of the note, and alleged that it had been settled and extinguished by the settlement of a former action between the parties hereto. Verdict for the defendant, and the plaintiff appealed from an order denying his motion for judgment notwithstanding the verdict, or for a new trial. The evidence tends to establish these facts: The defendant on October 31, 1876, was the owner of a quarter section of land in the county of Faribault, and on that day conveyed it to the plaintiff upon the express trust that the latter should sell it, and out of the proceeds of the sale pay all taxes on the land, and a mortgage thereon, and also a not due from the defendant to the plaintiff, and apply and pay the balance as directed by the defendant. But, in case the land should not be sold, then the plaintiff was to cultivate or rent it, applying the net proceeds thereof as stated. In 1895 the respondent, Herring, brought an action against the appellant, Southwick, for an accounting as to such trust. On the trial of his former action, appellant testified that he paid the note here in suit pursuant to the trust agreement, by direction of the respondent, and that he carried the amount so paid into his trust account, and claimed that such payment should be credited and allowed to him in the accounting in that action. The undisputed evidence shows that he did pay the note, and that it was indorsed as paid, but the respondent testified that he never directed appellant to pay the note. The trial court in that action found that respondent did not direct the payment of the note, and disallowed this item of appellant's account, with others, and held that there was due from respondent to appellant on the trust account the sum of $2,000 only, and that upon being paid that sum he recovey the land to respondent. Thereupon the appellant made a motion for a new trial. While this motion was pending and undecided by the trial court, and some years after the trial and submission of the action, the parties settled the suit, and the respondent's attorney made a stipulation for its dismissal. The stipulation was signed only by such attorney, and, so far as here material, was in these words: ‘In the above-entitled action it is hereby stipulated that said action, having been settled, is hereby dismissed, without costs or disbursments to either party; that any or all claims which plaintiff has or may have against the defendant for the use and occupation of the land described in the complaint in said action are included in the settlement of this action, and are hereby satisfied and dismissed; that the attorney's lien, notice of which has been served by plaintiff's attorney, for services rendered for plaintiff in said action, is included in the settlement of the same, and all claims for lien by plaintiff's attorney are hereby waived, satisfied, and discharged.’ On the trial of this action the respondent, over the appellant's exception, gave in evidence certain letters of the appellant, and conversations between him and such attorney relating to the settlement of the former action. This evidence tended to show that the action was settled on the basis that the respondent should convey the land to the appellant, who should pay $1,700 in full settlement of the matters in controversy in the action, and, further, that the money was paid, the deed executed, and the stipulation for dismissal delivered, all as parts of one transaction. The respondent never paid the note, unless it was included in the issues of the former action, and extinguished by the settlement and...