Spilker v. Hankin, No. 10576.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtCLARK, FAHY and WASHINGTON, Circuit
Citation188 F.2d 35
PartiesSPILKER v. HANKIN.
Decision Date23 February 1951
Docket NumberNo. 10576.

188 F.2d 35 (1951)

SPILKER
v.
HANKIN.

No. 10576.

United States Court of Appeals District of Columbia Circuit.

February 23, 1951.


188 F.2d 36

Alfred Goldstein, Washington, D. C., for appellant.

Thomas B. Scott, Washington, D. C., with whom Mr. Charles W. Mander, Washington, D. C., was on the brief, for appellee.

Before CLARK, FAHY and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

This was a suit against Mrs. Spilker upon five of a series of seven notes given by her to Mr. Hankin. After a jury trial in the Municipal Court, judgment was entered for the defendant. This was reversed by the Municipal Court of Appeals for the District of Columbia. We allowed an appeal to this court.

The factual situation is thus described in the opinion of the Municipal Court of Appeals:1

"This appeal arises from a judgment denying recovery on five promissory notes. The notes in question had been executed by appellee Mrs. Spilker for legal services rendered her by appellant Hankin in a divorce action. In the court below Mrs. Spilker defended on the ground of misrepresentation by Hankin when the notes were signed, and a jury returned a verdict in her favor. Hankin brings this appeal, assigning some fifteen errors. The decisive question is whether Mrs. Spilker is precluded by the doctrine of res judicata from denying liability on the notes.

"Without recapitulating all the facts presented in the record and the contradictory testimony of the witnesses, it appears that Mr. Hankin was engaged by Mrs. Spilker to represent her in a divorce action and in an ensuing property settlement. Other attorneys were also engaged by her at various stages of the divorce litigation, with Mr. Hankin acting as co-counsel. It seems undisputed that he did a major portion of the work in the case, although in the end he did not take the case to trial. While he was serving as co-counsel with the attorney who finally tried the case, Mr. Hankin obtained from Mrs. Spilker seven promissory notes for a total of $2000, made out to him, five of which are the subject of this litigation.

"These seven notes were executed on December 9, 1946 in the office of another attorney. They were made out in a numbered series extending from 1 to 7. Number 1 was a demand note for $500, and each of the others was for $250. The maturity dates on these latter notes fell on three month intervals from date of execution, with number 7 maturing on June 9, 1948.

"The demand note was paid a few days later, but when note number 2 fell due, it was not paid. Hankin filed suit thereon, and after a trial on the merits recovered judgment. The record in that action has been incorporated into the record here. Because of the question of res judicata, it is necessary to recount the proceedings in that first suit at some length.

"The action was begun by pleading the note in full. In her answer, Mrs. Spilker said `that plaintiff, as such attorney of record, refused to proceed in said divorce action involving a property settlement, unless the defendant would execute the note, which is the basis of plaintiff's suit, that the defendant acting under duress and in fear of losing her divorce action and property, was unlawfully coerced into executing the said note.' She also defended by saying that she had to engage other counsel at a cost of $1250, that the note in suit was for an exorbitant and unconscionable fee for legal services, and that she had already overpaid Mr. Hankin for his services.

"Thereafter, Hankin filed a motion to strike the answer, chiefly on the ground that it contained scandalous and libelous matter. But he also stated that his refusal to proceed with the case unless the note were signed was neither `duress' nor `unlawful coercion.' In her reply to the motion, Mrs. Spilker stated: `no relief can be granted where a contract lacks the essential element of consent,' and that since the note was executed under duress it was voidable. The motion to strike was overruled.

188 F.2d 37

"Before trial Mrs. Spilker amended her pleadings by filing a counterclaim seeking recompense for the amount she had paid the attorney who took her case to trial, and she sought a determination that the amount already paid Hankin was to be considered full payment for the services. She also demanded `that all the notes in the total of Two Thousand Dollars, $2,000.00, secured under duress from the defendant by plaintiff, including the note in suit, be declared null and void and of no effect * * *'

"The case was tried by judge and resulted in a general finding in favor of plaintiff Hankin, who was awarded judgment on the note, and a disallowance of the counterclaim. Mrs. Spilker took no appeal. The issue was first raised by plaintiff Hankin in a motion for summary judgment, supported by affidavit. The motion was denied on the grounds that `(a) it did not appear that the moving party was entitled to judgment as a matter of law, and (b) it did not appear that there was an absence of a genuine issue remaining for trial.' Accordingly the case proceeded to trial, before a jury.

"Mrs. Spilker's chief defense in the present action was that of misrepresentation, rather than duress and coercion. She pleaded: `that the execution and delivery of the said notes were obtained and defendant's signature thereto induced by the plaintiff upon the misrepresentation that if execution and delivery of the said notes were not made the best interests of defendant in said litigation would not be served * * *' She also stated: `that she had, prior to the execution of said notes, paid plaintiff in full for all professional services performed by him on her behalf and there was nothing due and owing him and no good and sufficient consideration for the alleged signing and execution of said promissory notes.' In other words, she was again denying the validity of the contract for lack of mutual assent in its execution, but this time for misrepresentation rather than duress and coercion. She also claimed failure of consideration and payment for plaintiff's services to the extent of their value." (Footnote omitted) 72 A.2d at pages 46-47.

After thus reciting the facts the Municipal Court of Appeals stated that "these were substantially the same issues defendant had raised in defense to the action on note number 2 and therefore, under the rule of res judicata, not again available to her unless she came within one of the exceptions to that rule." 72 A.2d at page 47. The court then examined at length the authorities relative to res judicata, and concluded: "Mutuality of assent to the basic contract itself having been specifically placed in litigation by her defenses and counterclaim in the first case, she was thereafter estopped from relitigating the same question. On that issue she had her day in court and lost; whatever other defenses she may have had to the other notes, the right to deny assent was not again available to her. This was not a situation where an equitable defense and counterclaim were never filed, or one in which the defense went only to part of the contract. Under the circumstances of this case the first judgment was conclusive on the issue of assent." (Footnotes omitted). 72 A.2d at page 49. The cause was thereupon reversed and remanded with instructions to set aside the judgment in favor of defendant and to enter...

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59 practice notes
  • United States v. State of Washington, Civ. No. 9213—Phase I.
    • United States
    • U.S. District Court — Western District of Washington
    • June 30, 1978
    ...483, 39 S.Ct. 533, 63 L.Ed. 1099 (1919); Garrett v. 1st Nat'l Bank, 153 F.2d 289 (5th Cir. 1946); Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1951); Moore's Fed. Practice § 1B at 0.4113 and 4; Restatement of Judgments, § 80, 16. The United States is not bound by, or collaterally es......
  • Commonwealth of Pennsylvania v. Brown, Civ. A. No. 39404.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 2, 1966
    ...v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1950); Larsen v. Larsen, 392 Pa. 609, 141 A.2d 353 (1958); 1B MOORE, FEDERAL 260 F. Supp. 343 PRACTICE ¶ 0.405 11.12 In the instant case, a co......
  • Otherson v. Department of Justice, I.N.S., No. 82-1991
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 1983
    ...532, 540 (2d Cir.1965) (among other considerations), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966); Spilker v. Hankin, 188 F.2d 35, 39 (D.C.Cir.1951) (same). In the Restatement's formulation, lack of incentive to litigate is one consideration for possible exception from pr......
  • Velasquez v. Franz
    • United States
    • United States State Supreme Court (New Jersey)
    • April 25, 1991
    ...1169 (2d ed. 1965); Desrosiers v. American Cyanamid Co., 377 F.2d 864, 871 (2 Cir.1967). See also Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35, 39 (1951); Cleary, Res Judicata Reexamined, 57 Yale L.J. 339, 349-50 (1948); 1B Moore, Federal Practice pp 0.405, . This may be a case in wh......
  • Request a trial to view additional results
59 cases
  • United States v. State of Washington, Civ. No. 9213—Phase I.
    • United States
    • U.S. District Court — Western District of Washington
    • June 30, 1978
    ...483, 39 S.Ct. 533, 63 L.Ed. 1099 (1919); Garrett v. 1st Nat'l Bank, 153 F.2d 289 (5th Cir. 1946); Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1951); Moore's Fed. Practice § 1B at 0.4113 and 4; Restatement of Judgments, § 80, 16. The United States is not bound by, or collaterally es......
  • Commonwealth of Pennsylvania v. Brown, Civ. A. No. 39404.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 2, 1966
    ...v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35 (1950); Larsen v. Larsen, 392 Pa. 609, 141 A.2d 353 (1958); 1B MOORE, FEDERAL 260 F. Supp. 343 PRACTICE ¶ 0.405 11.12 In the instant case, a co......
  • Otherson v. Department of Justice, I.N.S., No. 82-1991
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 21, 1983
    ...532, 540 (2d Cir.1965) (among other considerations), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966); Spilker v. Hankin, 188 F.2d 35, 39 (D.C.Cir.1951) (same). In the Restatement's formulation, lack of incentive to litigate is one consideration for possible exception from pr......
  • Velasquez v. Franz
    • United States
    • United States State Supreme Court (New Jersey)
    • April 25, 1991
    ...1169 (2d ed. 1965); Desrosiers v. American Cyanamid Co., 377 F.2d 864, 871 (2 Cir.1967). See also Spilker v. Hankin, 88 U.S.App.D.C. 206, 188 F.2d 35, 39 (1951); Cleary, Res Judicata Reexamined, 57 Yale L.J. 339, 349-50 (1948); 1B Moore, Federal Practice pp 0.405, . This may be a case in wh......
  • Request a trial to view additional results

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