Lait v. Sears

Rugg, C. J. These are actions to recover the balance due upon judgments conceded to have been recovered by the plaintiffs for personal injuries against the defendant. The defence in substance is, that the defendant claimed to be insured against loss arising from injuries like those sustained by the plaintiffs, but that liability on his policy was denied by the insurance company; that he thereupon after the recovery of the judgments by the plaintiffs entered into an agreement with them, which is printed above in the statement of the case. Five thousand dollars was paid by the defendant to the plaintiffs’ attorney and receipt therefor given. The plaintiffs’ attorney thereupon indorsed upon the execution in each case “fully satisfied” and returned the executions into court and entry of the indorsement was noted on the docket. Thereafter the defendant negotiated a settlement with the insurance company without action in the courts and received $4,500. He denies all liability to the plaintiffs because he contends that under the agreement he was required to give a note only in the event that he received $5,000 from the insurance company. The agreement of April 25, 1913, rightly interpreted, seems to us to mean that the judgments obtained by the plaintiffs against the defendant were to be settled only upon the terms and conditions therein set out, and if these terms and conditions were not performed, then the judgments were not settled. There were two [124] conditions to be performed by the defendant. The first was to pay $5,000 within three days. That condition he performed. The effect of so doing was to satisfy and discharge the judgments “except as hereinafter provided,” to quote the contract'. That exception constituted the second condition to be performed by the defendant, namely, to “institute proper proceedings to collect from” the insurance company $5,000 and, in the event that that sum should be collected, to give a note. According to the terms of the contract the judgments were to be satisfied only upon the performance by the defendant of both these conditions. If he failed to perform either one of them, then the judgments were not discharged. The question to be decided is whether he performed the second condition resting on him according to the contract, that is to say, did he “institute proper proceedings to collect ” from the insurance company $5,000. Doubtless these words, “proceedings to collect” may have different meanings when used in diverse connections. They were employed by these parties in the face of a controversy between the insurer and the insured touching the meaning of a clause in a policy of insurance to the effect that it did “not cover loss from liability” for injuries caused by an automobile “while . . . used to carry passengers for a consideration, actual or implied,” and touching the question whether the conduct of the insurer constituted a waiver of that clause. These controversies involved the decision of questions of law as well as of fact. The contract contains no provision relative to a compromise of conflicting claims or the collection of any sum less than the whole by way of settlement. It refers only to the institution of proceedings to collect and the actual collection of $5,000 and, by fair implication, the failure to collect anything. Under these circumstances the only reasonable meaning to attribute to these words is that an appropriate action in the courts shall be commenced and prosecuted to a conclusion to collect the amount of the policy. The contract in this connection by the words “proceedings to collect” is broad in signification and comprehends the invocation of a judicial determination of the matter in dispute in accordance with the usual practice of the courts by any appropriate civil process. These words in this connection are not satisfied by the opening of negotiations outside the courts and by making [125] what may have been a wise settlement of the controversy. That course, however sagacious it may have been, does not constitute a compliance with the conditions of the contract, performance of one of which is just as essential as performance of the other to a satisfaction and discharge of the judgments. It is not for us to make a contract which would appear equitable under the circumstances now existing. We can only interpret the contract actually made and enforce its terms. This interpretation of the contract renders it unnecessary to consider the numerous arguments of the defendant founded on the contention that the acceptance of the contract was a satisfaction of the judgment. Doubtless the acceptance by a creditor of an agreement by his debtor to do something else than pay in cash a debt presently due may discharge the debt. But the contract in the case at bar is not of that tenor. The indorsement of satisfaction upon the executions was an equivocal act and was open to explanation by evidence as to the amount'actually received. Weber v. Couch, 134 Mass. 26. Bruce v. Anderson, 176 Mass. 161. Although this is not a case where it appears on the face of the executions that less than the whole amount due was received, as in Smith v. Johnson, 224 Mass. 50, yet oral evidence is permissible to show the actual amount paid, as in cases of receipts, deeds or other contracts. Way v. Greer, 196 Mass. 237. This is not a collateral attack Upon the accuracy of the record of the court, or of an officer in making return of an execution. It is making clear the ambiguous act of a party in writing words upon an execution. No formal entry of satisfaction of final judgment was entered upon the records, as in McGillvray v. Employers’ Liability Assurance Corp. 214 Mass. 484. The ’writing as to payment upon an execution, when handed into court by a party, is not the judgment of the court. It is not “properly a return, but a receipt.” Brown v. South Boston Savings Bank, 148 Mass. 300, 306. The defendant’s request, that “Full satisfaction of an execution issued upon the judgment referred to in the plaintiff’s declaration is full satisfaction of said judgment,” rightly was refused, because it is apparent that the judge found that the execution was not paid in full or otherwise satisfied. It follows that the defendant did not perform one of the condi [126] tions upon the performance of which alone the judgments would be discharged. The judgments therefore remained in force and the present actions can be maintained. In accordance with the terms of the reports, let the entry in each case be Judgment for the plaintiff upon the finding.