Dinkel v. Wehle

J. F. Daly, J. The action was brought by the plaintiff, who had been appointed referee by the court of common pleas in the action of Fischer agt. Raab et al., to recover his fees as such referee on an alleged personal agreement of defendant, who was Fischer’s attorney, to pay them. The fees amounted to $130. After they were earned defendant in order to procure the release of his client, who had been committed by the court of common pleas for contempt in not paying the said fees, offered the amount to plaintiff on condition that the latter would sign a stipulation to return the money if the order committing Fischer should be reversed on appeal. Plaintiff took the money on this condition and signed the stipulation. The order was reversed and this defendant sued this plaintiff in the supreme court upon the stipulation to recover back the $130. The answer set up fraud in procuring the stipulation, but the suit was settled before trial by this plaintiff retaining thirty dollars and paying over $100. The plaintiff placed his demand at ninety-nine dollars and ninety-nine cents to prevent a removal of the cause to this court (Code, sec. 3216); but as the summons contained, in the printed portion of the blank form used, a demand of [305] interest, defendant claimed the whole demand to he over $100 and insisted on his right of removal. This right was not urged, however, until after an adjournment had on application. As to the alleged right of removal the amended return shows that it was claimed, after an adjournment had, at defendant’s request. It was then too late (Code, sec. 3216). On the question whether the justice was justified in finding a personal agreement on defendant’s part to pay the fees, it seems that the evidence supports the findings. Ordinarily the attorney would be assumed to act as agent for his client in undertaking for the expenses of a litigation, but in this case it seems that the doubtful responsibility of the client was discussed and the personal obligation of the attorney given and accepted. In arriving at the result I do not find any error, nor does there seem to be any improper rulings by the justice in the course of the trial. Only two are specifically mentioned in the appellant’s brief: The first excluded, which was-manifestly improper, as it called for the witnesses conclusion as to the effect of a lost paper instead of calling for its contents. The second admitted testimony of transactions between, defendant and plaintiff personally. Whatever there was in. this is not pointed out, and I can conceive of none. The main, point in this case is whether as matter of law plaintiff was entitled to recover after he had settled the supreme court action, with defendant by retaining thirty dollars and paying back. $100 under the stipulation he signed when defendant originally handed him $130. I see nothing in any of the transactions to effect the claim upon which recovery has been had here. The proof having established that defendant agreed personally to pay the fees of the referee, he became principal debtor for the amount. When he tendered the $130 to the referee, and exacted a stipulation that' it should be returned in the event of the reversal of the order committing his client, he did not pay his indebtedness to the referee, because payment must be unconditional. He did not tender the amount in order to discharge the indebtedness, but simply in order to obtain his [306] client’s release from jail, under the decision of the court of common pleas providing for payment of the fees by Fischer, under a certain stipulation. The payment was therefore in another right than defendant’s own and for another purpose than to cancel his obligation to the referee, and was collateral to such obligation and the money so received by the referee was in effect a security for the indebtedness which might or might not become available to him as creditor upon the happening of a certain contingency. Had the result established the referee’s right to retain the $130, it would, it is true, have extinguished the debt, as the collection of collaterals has always that effect pro tcmto, but the condition of the stipulation operated to require him to relinquish the fund or security which he did, except as to thirty dollars that he was suffered to retain. This thirty dollars being credited as it had to be on the debt, a clean right of recovery for the balance existed. As the supreme court suit was brought by this defendant .against this plaintiff to recover back the $130 under the •stipulation, and as the issues therein related only to the validity of that instrument, the settlement and adjournment -of that litigation determined nothing, except that the referee had the right to retain thirty dollars of the collaterals and was bound to surrender $100 of the fund. This claim was accordingly reduced by the amount retained, and the justice properly gave him judgment for the balance. Judgment affirmed, with costs. Van Hoesen, J., concurs. The defendant thereupon made a motion for leave to appeal from the affirmance of the judgment, to the court of appeals, and Mr. Henry Wehle, in his own behalf, made and argued the following points: I. Upon the question whether an accord and satisfaction is not in all cases binding upon both parties in respect to the claims which either party may have against the other, as long as they arise from the identical transaction, supposing there [307] had been at that time a personal liability on the part of the defendant to pay the referee’s fees, it was within the province of the parties to agree upon whatever terms they chose of discharging this liability. II. The receipt, with the stipulation appended, is of itself a contract which' absorbed whatever promise there may have been made before it, and this agreement in writing contained the only liability of the parties. III. Plaintiff elected to accept a payment which by his own stipulation he may be required to pay, no one compelled him to accept such a payment if he was entitled to an absolute payment, but having accepted such a payment, he is thereby concluded. He signed the receipt and stipulation. IV. All previous promises and arrangements were merged into this written agreement. The anterior promise did not exist in force, and the payment of the money and the stipulation to return it were merely collateral to the anterior promise. Such an exception to the general rule relating to contracts does not exist. V. The plaintiff’s objection to an order granting leave to submit the same to the court of appeals, is entitled to no great weight. By means of his action in settling one suit against him and commencing another suit for the consideration paid him for said settlement, he secured the transfer of a controversy from the supreme court to a district court, and then reduced the amount by one cent for the outspoken purpose of defeating defendant’s effort to remove the cause to an another tribunal, and to prevent defendant from appealing to the court of appeals. It should be only fair to suggest that such proceedings generally arise from sinister motives, but whether they arose in this case from such motives or not, it would only be just that defendant, who will be amerced by a large bill of costs, if his appeal is not successful, should be afforded the opportunity of presenting his grievance to the higher tribunal for review. [308] George F. Langbem in opposition contended : I. The origin of the defendant’s promise to pay plaintiffs the referee’s fees, and the transaction as to the stipulation and the supreme court suit therein'were not identical. II. There never was an agreement to discharge defendant’s original liability to pay the referee’s fees, and the receipt with the stipulation appended contain nothing absorbing the original promise and indebtedness. The parties were not treating as to an absolute, irrevocable payment, but as to a conditional payment. The plaintiff was to receive the referee’s fees; they were not absolutely and finally paid him as he had a right to have them. There was in fact and in law no payment of the referee’s fees. III. Judge Daly’s decision compelled plaintiff to accept the referee’s fees conditionally as to the reversal of the order of reference, or in other words, in case it was decided that Mr. Fischer was not bound to pay them, the referee was to repay them. This, however, was not the stipulation which defendant procured from plaintiff; he obtained a different one, conditioned on the reversal of the order of commitment, with which the referee had nothing to do, and had no concern in. IY. The anterior promise was not merged in the receipt or stipulation. They were different things. The anterior promise was absolute as to payment; the other was conditional. There was no merger. The greater could not merge into the lesser. The condition was not, that he was to receive no referee’s fees, but merely that he was to return the money he had received. The repayment under the stipulation merely left plaintiff to get absolute payment of his fees as best he could, which was by an action at law. Y. There is nothing-in-this application for leave to appeal to the court of appeals, except a- fondness for the- chances of law and litigation. Yah Brunt and Beach-, JiT. — “ There seems to be no sufficient reason for allowing this case to go to the court of appeals.” Motion denied.