Grumley v. Webb

CüRRiBR, Judge, delivered the opinion of the court. The possession and legal title to the leasehold described in the petition is in the defendant, but the plaintiff claims to be the — 569 — equitable owner of it, and brings this suit to recover the rents and profits and to divest the défendant of title. As an answer to the plaintiff’s claim, the defendant avers a compromise and release of it. He sets up an accord and satisfaction in bar of the suit, alleging, in substance, that since the accrual of the cause of action sued on, the plaintiff and defendant have settled all matters in difference between them, inclüding said supposed cause of action, and that the defendant, in consummation of such settlement, paid the plaintiff the sum of $6,500, and that the plaintiff accepted and received the same in full satisfaction of all claims and demands then existing in his favor against the defendant — the claim now in litigation, as the defendant alleges, being one of them. . . These allegations are put in issue by the pleadings. T'he case is thus made to turn upon the evidence adduced in proof of the alleged accord and satisfaction. At the trial, the defendant, for the purpose of proving the averments of his answer, offered and read in .evidence a receipt dated March 7,*1865, which was duly executed by the plaintiff. It appears from this receipt that the defendant, on the day the receipt was executed, paid to the plaintiff the sum of $6,500, and that the plaintiff accepted and received the same as in full satisfaction of a certain judgment and “all claims and demands” then held by him against the defendant. So the receipt reads. At first blush, the receipt seems to prove the defendant’s case, since the cause of action sued on accrued prior to the execution of the receipt. That view, however,. encounters objections. It is objected that, the receipt fails to meet the requirements of the .statute of frauds (Wagn. Stat 655, §2); and further, that a true construction of its terms excludes the cause of action now in suit. It is proposed.by construction to limit the effect of the receipt to the particular judgment therein set out and described. The first objection is based upon the assumption that the plaintiff’s equity constituted an interest in real estate that could not be sold or conveyed except by some instrument in writing which should meet the requirements of the statute of frauds in relation to such sales and conveyances. — 570 — It is then insisted that the receipt fails to meet these requirements. If that were so it would not invalidate the receipt as regards the use sought to be made, of it here. It was not given in evidence to prove either a sale or conveyance, but to establish the fact of an accord and satisfaction which included and extinguished the plaintiff’s equity. The plaintiff’s objection as regards the 'point now under consideration is without force, unless it is shown that the plaintiff’s interest in the leasehold was of such a nature that it could not be destroyed in the manner stated in the answer — that is, by an accord followed up and consummated in a complete satisfaction. The plaintiff’s counsel cite and rely upon Hughes v. Moore, 7 Cranch, 466, as the strongest-case to be found in the books in support of their position. But that case does not prove that the plaintiff’s equity could not be.extinguished by the accord and satisfaction evidenced by the receipt. It proves the direct opposite of that, as we shall presently see. In that case the equitable owner made a parol agreement, for a certain consideration agreed to be paid, to surrender and transfer his equitable interest in certain lands to" the bargainees who held the legal title. The agreement was not reduced to writing, nor was anything done in execution of it. The equitable owner nevertheless subsequently sued the bargainees for the purchase money, and it was held that he could not recover, the court deciding that the agreement was for .the sale of an interest in land, and so ysdthin the statute of frauds — nothing having been done in execution of the agreement. But there is no vital resemblance between that case and the one now under consideration. There the suit was founded upon an unexecuted parol contract, and was brought to recover the unpaid purchase money. Here (assuming that the receipt was intended to cover the matters now in litigation) the purchase money was paid down and in full, if the transaction can be regarded as partaking of the nature of a purchase. At all events the contract was executed, and upon that fact the present defense rests. The defendant is in possession and holds a perfect record title. He neither asks nor needs the assistance of the court. It is the plaintiff that is — 571 — calling on tie court for help. He invokes tbe extraordinary power of a court of equity to enforce what he claims as an equitable right. .He agreed on the value of the supposed equity (assuming as before that the receipt covers the case — a point which will hereafter be considered) and has been paid that value in full. He .accepted the sum so paid as a satisfaction, and abandoned' his claim. With the consideration money in his pocket, he now seeks in a court of equity to recover the property'itself! There is no equity here that a court of equity will deign to touch, and for the reason that the claim asserted is altogether inequitable and unconscionable. The settlement, coupled with the $6,500 payment, extinguished the plaintiff’s equitable interest in the leasehold, and left nothing for a court of chancery to act upon; and this view is amply •sustained by the decision in Hughes v. Moore, the case cited and relied upon by the plaintiff ’s counsel. Chief Justice Marshall, in pronouncing the opinion of the court in that case, said: “To the majority of the court it seems that a compensation for the loss of the title to the land must be understood as a compensation for the land itself, and that the receipt of the money by Cleon Moore [answering to Grumley in this case] would not only have barred an action for damages, hut a suit in equity for the title.,, And again: “The majority of the court is of opinion that, under the contract as stated in this count also, the payment of the money agreed to be paid would have extinguished the right of Cleon Moore [Grumley] to the land in question.” That is precisely what is claimed by the defendant in the present action, namely, that the payment of the money, under the accord, extinguished Grumley’s interest in the property, and barred a suit in equity for its recovery. The decision in Hughes v. Moore, instead of sustaining the plaintiff’s theory, completely undermines and overthrows that theory in its application to the facts of the present litigation. (See Altham’s case, 4 Coke, 305-6; Perkins v. Forniquet, 14 How. 315 ; Vedder v. Vedder, 1 Denio, 259.) But the main question in the case is, treating the plaintiff’s receipt as a good and valid instrument, sufficient to accomplish all the objects intended by it, what is its real scope and true construction? Does it include the claim asserted in this action? — 572 — In the execution of that instrument the plaintiff acknowledged the receipt of $6,500 and declared the same tobe in full satisfaction of a judgment which he had recovered against the defendant and his former partner David S. Bigham, and that the sum so received was also “ in full satisfaction of all claims and demands” then held by him “ against said Bigham and Webb, or either of them,” It appears from the receipt that the money was paid by Webb, and the discharge seemed to embrace several claims against Webb, as well as joint claims against him and Bigham. It was nevertheless held by this court, when this suit was here on a former occasion (see 44 Mo. 456), that the general words of the receipt, namely, the words “ all claims and demands,” construing the receipt upon its face and according to its terms, pointed to the judgment specifically named in the receipt, and that they had no reference to any separate or several liability against Webb, not embraced in the judgment. To that extent-the construction of the receipt must be regarded as judicially determined. It is therefore settled judicially that the receipt upon its face did not include and discharge the cause of action upon which the present suit is founded. The court, however, did not stop there, but went on and held further that this narrow construction was not necessarily the true construction. It was held that the receipt, “ like all contracts, must be interpreted and construed from existing facts, and in the light of surrounding and cotemporaneous circumstances.” Accordingly the court proceeded to inquire into these facts arid circumstances, and a majority of the court, upon a review of the evidence as it then stood, reached the conclusion that the evidence then appearing in the record failed to show that the plaintiff “had any idea that the settlement included the second suit” — that is, the suit last commenced, which was pending when the settlement was effected, and which will hereafter be more fully referred to. The narrow construction was therefore adhered to, and an interpretation given to the receipt which narrowed its scope to the particular claim (the judgment) therein described. It will therefore be seen that the construction of the — 573 — receipt was made to turn, in tbe end, upon the decision of a question of fact, namely, whether the second suit was or was not understood by the parties to be included in the antecedent settlement. The court, upon the evidence then before it, failed to find the existence of such understanding, and accordingly held the second suit not to be embraced in either the settlement or the receipt. The judgment of the court below (which was for the defendant on the first hearing) was thereupon reversed and the cause remanded for a re-trial in accordance with the views announced.-in the opinion. The re-trial was had, and resulted in a judgment for the plaintiff. The ease is now here for a second review, and the question in regard to the scope of the settlement, and consequently of the receipt, is again up for consideration, but upon evidence materially different from that embraced in the former record. If the second suit was embraced in the settlement, then it is agreed that the receipt must be construed with reference to that fact, since otherwise the clear and manifest intention of the parties would be frustrated. If the second suit was included, and .the receipt is construed with reference to that circumstance, then its general words; “ all claims and demands,” must have a broad application and be interpreted so as to include more than the named judgment. If they include anything beyond that, then the narrow construction must be abandoned and the general words of the receipt allowed to operate according to their usual legal import, and as including every claim at the time held by the plaintiff against the defendant, whatever its name or character. It has not been claimed, and cannot be with any show of reason, that the receipt was less comprehensive than the settlement. The material question, therefore, is — as was the fact when the case was previously here — what did the settlement include? or, in other words, did it include the second suit? The case was tried the second time in the court below de novo, in accordance with the mandate of this court remanding the cause, and the trial resulted in the accumulation of a very large amount of testimony, occupying some 500 pages of the record. That testimony I now propose to examine with reference to its bearings upon the question already propounded. — 574 — The evidence shows that at the time of the settlement, two suits were pending in favor of the plaintiff — one against the defendant and his former partner, Bigham, and the other against the defendant alone. The suit against Bigham & Webb was first commenced, and was brought to recover the rents and profits of the same leasehold which constitutes the subject-matter of the present suit, and which is described in the present petition. It was sought also by that suit to recover the title to the leasehold; the legal title then, as now, being in Webb. The suit in its general objects was not mater ally different from the present one. The other and subsequent suit, which has been referred to as the “second suit,” was against Webb individually, and was brought to recover the value of the material entering into the construction of the buildings which were standing upon the leasehold premises. This second suit was commenced in September, 1864, some six months before the settlement was concluded, and while the settlement negotiations were pending. We shall be aided in determining the question whether that second suit whs or was not included in the settlement, by a recurrence to the subject-matter of the two suits, to the negotiations which culminated in the settlement, and to the dealings and relations of the parties to said litigation. The following facts are not in dispute: In October, 1855, the plaintiff was the owner of the leasehold in question. He was then in embarrassed circumstances, and had allowed ground-rent and taxes to accumulate against the property. The property was also subject to a deed of trust and to the encumbrance of a judgment lien. His affairs were in this embarrassed condition when he applied to Bigham & Webb, areal estate firm, composed of the defendant and said Bigham, to take charge of said leasehold and collect and apply the accruing rents. The rents realized were to be applied to the payment of taxes and ground-rent, and to the liquidation of other liabilities then outstanding against the plaintiff. Bigham & Webb accepted the agency and entered upon the discharge of its duties. This was on or near the first day of October, 1855. In less than a week from that time, the plaintiff secretly withdrew from the — 575 — country and remained abroad for some four years. 'He did not return to St. Louis till 1859. In the meanwhile the leasehold was levied upon and sold under an execution issued upon the judgment which rested against it at the time of the plaintiff’s abandonment of the country. The defendant became the purchaser at that sale, taking it, of course, subject to all prior liens and encumbrances. The subsequent difficulties between the parties may be regarded as dating from that transaction. When the plaintiff returned from Europe in 1859, he called upon'his agents, Bigham & Webb, and demanded.of them an accounting and the revesting in himself of the title to the leasehold. These demands were, not complied with as regards the rents which accrued after the above-mentioned execution sale, and as regarded the transfer of the leasehold itself. The defendant claimed both as his. The plaintiff thereupon commenced a suit against Bigham & Webb to recover the rents and to re-acquire the title to the leasehold, alleging in his petition that the defendant held the title as the plaintiff’s trustee. It was asked that an accounting should be had, and that the title should be divested put of Webb and revested in the plaintiff. The plaintiff, May 11’, 1864, recovered a judgment against the defendants in that suit for the sum of $>11,522.54, as the net balance of rents then in arrear to him. The judgment was so far erroneous and excessive that the plaintiff’s counsel had no expectation of being able to sustain it. An appeal was taken, or arranged to be taken, and thus the matter rested for ten months, pending negotiations for a compromise settlement. Subsequent to the rendition of this judgment, and while the negotiations were going forward, the plaintiff instituted another suit against Webb individually, being the action already referred to as the “ second suit.” The object of this suit, as has been stated, was to recover the value of the material entering-into the construction of the buildings standing upon said leasehold, the defendant being in the possession and use of them. It has already been stated that both the suits above referred to were pending and undisposed of on the 7th of March, 1865, — 576 — when the parties came together and effected their settlement. These suits were prosecuted by Col. Broadhead, as the plaintiff’s attorney and professional adviser. Soon after the rendition of the judgment for the $11,522.54, negotiations were set on foot, having for their object some sort of an adjustment between the contending parties. Col. Broad-head, on the part of the plaintiff, and Judge Krum, on the part of the defendant, appear to have taken a leading part in these negotiations. Everything that was done at all was done under their guidance, counsel and supervision. A settlement was effected, and they in their professional relations were parties to it; they were conversant with every detail, and I shall spend no time in arraying the evidence with reference to the establishment of the proposition that they acted intelligently and knew perfectly well what was proposed to be done and what was in fact accomplished. These eminent gentlemen both agree in the statement that the settlement included both suits. Col. Broadhead testifies guardedly, but on that -point he is clear and positive. He understood both suits to be included in the settlement, and testifies that he supposed his client so understood it also. He testifies that Judge Krum insisted upon including both suits ; that he yielded to the demand; and Broad-head, on the part of the plaintiff, was the negotiator, as appears not only from his testimony but from that of his client. There is no doubt about the scope of the settlement as it was understood by the plaintiff’s counsel, who had the matter in charge. He undei’stood, and had the best of reasons for his opinion, for he was in a position to know the facts, .that both suits weffe included. He testifies also that hfe “ impression ” at the time of the transaction was that “ Grumley knew all about it.” Whence came that impression ? From what quarter was it derived, if not from his own client? Col. Broadhead not only “understood” the second suit to be included in the settlement — he acted upon that understanding, and dismissed the suit on the very day of the settlement, and it has never been revived. ' The suit was not only dismissed — it was dismissed at Webb’s cost. If the second suit was not — 577 — included in tbe settlement, why was Webb charged with these costs ? It is not to be supposed that he would have paid them had he not believed that the dismissal meant something. But the plaintiff swears, and the exigency of his case is exceedingly pressing on that point, that the dismissal was the unauthorized act of Col. Broadhead. This, to say the least of it, was placing Col. Broadhead in an undesirable position. The fact asserted is one not likely to occur; it is highly improbable, and requires strong support to secure a belief of it. It is not supplied by Col. Broadhead’s mere want of definite recollection upon the subject, nor by the fact that no definite instructions to dismiss were given. Grumley’s attorney was warranted in doing what was appropriate to the general scope of the settlement, without waiting for specific instructions in regard to the details of the transaction. The dismissal was a mere incident of the settlement, if the settlement included both suits. Besides, the plaintiff’s conduct, subsequent to the settlement, shows that he had abandoned the suit; that it.was not only dismissed from the records of the court, hut from the plaintiff’s care and attention. The suit had been pending six months when the settlement was made. In the ordinary course of business the day for the trial-could not be distant. Did the plaintiff interest himself about' it? Did he make any preparation for the impending trial? Did he even consult his counsel on the subject? Nothing of the kind appears, and he swears that he was in ignorance of the dismissal until his cause had been out of court for nearly a year and a half. Is such long-continued ignorance consistent with the idea that he believed himself to be a party to an important and warmly-contested pending suit ? The suit was dismissed March 7, 1865, and the plaintiff’s alleged claim laid dormant for nearly three years, and down to the Commencement of this suit, February 6, 1868. The plaintiff’s temporary absence in Memphis explains nothing. He was still in easy reach of his counsel, and his absence did not arrest the business of the courts, or stay the progress of his suit. If the investigation were to stop here, and the case were to be turned upon its undisputed facts, and the testimony of the plain — 578 — tiff., coupled with .that of -his- counsel in the former litigation, I should find it..difficult to resist -the conviction that the aforesaid second suit was included. in the settlement, and 'that the entire litigation, in .regard to that leasehold was understood by both parties “to be closed'.-up and forever put to rest. 'But there is much more in the case that tends in the same direction, and the attitude' of the controversy makes it necessary that-1 should refer to the remaining evidence. • ■ ■ The two suits pending at the date of the •settlement' related to the.same piece of.property, and were so connected that the mention of one of them would naturally suggest the- other. Neither could have been overlooked or forgotten in the settlement. Suppose the parties took both suits into consideration, and that they intended to settle both, what papers would have been appropriate to that end ? In one a judgment had been rendered therefore a. discharge of-record was necessary in order to clear the records of the judgment lien ; in -the other no judgment had been rendered, therefore a mere dismissal was all that was necessary to clear the records of the court. But the dismissal did not discharge the cause-of-action; therefore a third-party was necessary in order to extinguish that. On examination, the papers actually executed on the occasion ar.e found to meet perfectly all these conditions, furnishing a strong circumstantial confirmation of the correctness of the' theory that both suits were included- in the settlement. The papers referred to are as follows : THE ORDER TO ENTER SATISEACTION. “Wm. Grumley. v. David S. Bigham, Wm. G. Webb, and Charles Pond. In the St. Louis Circuit Court. “I acknowledge to have received full satisfaction of the judgment recovered in the above-entitled cause, and authorize the clerk of the court to enter satisfaction of said judgment on the records. ' '' . (Signed) . William Gsumlex. . “St. Louis, March 7, 1865.” If the object of the parties had been to discharge this judg- - ment and nothing more, no other paper-than that copied above was necessary. Still the parties were not content with that, and' — 579 — the following papers were drawn up and executed oh the same occasion: THU ORDER TO DISMISS. “ Wm. Grumley v. William G. Webb. In the St. Louis Circuit Court. “ On the payment of the costs in this case by defendant, this suit is to be dismissed. (Signed) Sharp & Broadhead. “ St. Louis, March 7, 1865.” THE GENERAD DISCHARGE. “"Received from Wm. G. Webb six thousand five hundred dollars, which is in full satisfaction of a judgment recovered by me against said Webb and David S. Bigham, in the St. Louis Circuit Court, and said sum is in fall satisfaction of all claims and demands I have or hold against said Bigham and Well, or either ox them,* up to this date. (Signed) William Grumlev. “St. Louis, March 7, 1865.” In view of the facts already developed, is it possible to look at this array of papers and then come to the conclusion that the parties intended nothing more by them than the discharge of that single judgment? Yet that conclusion must be reached or the plaintiff’s case is lost. Eor if anything was intended beyond the cancellation of the judgment, then the general words of the receipt, “all claims and demands,” must be construed so as to take effect and carry out what was intended to be accomplished by them. As has already been remarked, if they are construed to include anything beyond the judgment, then they include every claim which the plaintiff may have had against the defendant at that time. It is, moreover, to be borne in mind that the papers were drawn up and executed under the advice of counsel among the foremost in the State. It is not to be supposed that they acted and advised without a legal reason for their conduct. Besides all this, Grumley is not represented as a man destitute of sense. He knew all about the suits and the purpose of them. Did he sit down and read that general discharge, as the evidence shows he did, and that, too, under the eye of Col. Broadhead, and not have his attention arrested by that sweeping clause which declares that the $6,500 was paid and received as in full satisfaction of all claims and demands he then had or held against said Bigham and Webb, or either of them? . — 580 — Grumley testifies that he read the receipt upon the special direction of his counsel, and that Col. Broadhead stood over him when he signed it. Broadhead testifies that the settlement included both suits ; that Krum so insisted, arid that he “ yielded.” Thus understanding the matter, and standing over his client when the latter signed the receipt, he testifies that he “explained, ” the document to him. Thus it appears that when the settlement was at its crisis, and upon the point of consummation, Broadhead and Grumley examined that most important paper which was to stand as enduring evidence of the scope and terms of the arrangement; that Grum-ley read it, and that Broadhead explained it to him. Broadhead knew that both suits were included in the arrangement — knew that the other party so understood it; and with all this knowledge he explained the receipt to his client. Did he give a full and true explanation according to his sworn statement of the understanding between him and Krum ? or did ,he suppress and keep from his client’s knowledge a material part of the transaction? There is nothing in the case to warrant a suspicion of concealment, and Col. Broadhead did not forget the second suit. It was present to his mind on that-very occasion, as is shown by his written order to dismiss. The order bears the same date with the other papers, and Col. Broadhead testifies that it “ looks like they [the three papers] all ought to go together;” and there is no evidence to show the contrary of that. I have hitherto considered the case with reference to its undisputed facts, as these facts are explained and illustrated by the plaintiff’s testimony and that of his former oounsel. I now recur to the testimony on the part of the defendants. Judge Krum was Webb’s counsel. He testifies that on the 7th of March, 1865, Webb and Grumley came to his office and announced to him that they had “ come to a settlement of all their difficulties,” or words to that effect; that it was then stated to him that Webb was to pay $6,500 and the costs of both suits. He was, as he testifies, requested to draw up the proper papers evidencing the settlement. Before doing so, as he testifies, he addressed the parties as follows: “Now, gentlemen, I under — 581 — stand that this is a settlement of the whole controversy about this property between you.” He states that he understood both to assent to this, and that he then proceeded to draw up the papers. The papers are all in his handwriting — that is, the three papers already given. It appears that there was a prior understanding between Broadhead and Krum, that the latter, in case a settlement was effected, should favor the passing of the money to be paid by Webb through Broadhead’s hands. Krum testifies that in pursuance of this understanding, and for the further reason that he wished the counsel of the opposite party to be cognizant of the papers, he proceeded with Grumley, after the papers were drawn up, to Col. Broadhead’s office, where, as he says, the transaction was closed in his presence. He is not certain whether Grumley accompanied him, or whether he might not have met him at Broadhead’s office by appointment. Webb corroborates Krum fully as to what occurred in the latter’s office in Grumley’s presence. Now, if these witnesses (Webb and Krum) are to be believed, their testimony establishes the fact that the second suit was included in the settlement, and that Grumley knew it. Why should they not be believed ? As regards what occurred in Krum’s office —and that is the' important matter in this connection — Grumley is the only witness that contradicts them. He sets up an alibi, and sustains it by his own oath. He swears that he was not in Krum’s office on the day mentioned, or on any day near that time. He is in direct conflict with Webb and Krum. The testimony on this point is irreconcilable. Who is to be believed ? If Grumley was not in Krum’s office on the 7th of March, 1865., then the testimony of the witnesses who affirm that he was, is to that extent á pure invention. The interested parties may be treated as balancing each other, but what shall be done with the testimony of Judge Krum? His statements, if credited, are decisive of the case. He is sustained by Webb and contradicted by Grumley. Grumley denies that he was in Krum’s office as stated. He denies, too, that Broadhead had any authority to dismiss the second suit; and denies further, and over and over again, and — 582 — in forms the most positive, that prior to the day of settlement Broadhead was- authorized to settle the first suit- for less than $11,522.54, that being the full face of the judgment. Yet it is an undisputed fact in the case that prior to that date, Broadhead had been negotiating for months flor a compromise settlement of the judgment; that he offered to discount from its face thousands of dollars, and that he finally'acquiesced in a settlement at considerably less than half the face of the judgment; and further, that Grumley instantly ratified- his acts in that behalf and gave a discharge in full of all claims and demands. According to Grumley’s own statements, Broadhead acted throughout the negotiations as a mere volunteer and intermeddler', and without the slightest shadow of authority. But it is manifest from the case — and counsel do not attempt to controvert the fact — that Broadhead’s negotiations in respect to the judgment were duly authorized.' Grumley’s denials on that subject must therefore go for nothing. If these are set aside as wholly unreliable, what becomes of his denials of Broadhead’s authority to dismiss the second suit ? His rash swearing in regard to the former, shakes the credit of his testimony in regard to the latter. He no more denies authority in the one case than in the other.- -His unsupported statements cannot be accepted as sufficient to countervail the testimony of both Webb and Judge, Krum, the latter being a pecuniarily disinterested witness. It is alike more reasonable and charitable to suppose forgetfulness on the part of Grumley rather than invention on the part of the opposing witnesses. It is an entire mistake to suppose that there is any serious conflict between Judge Krum and Ool. Broadhead. They differ as to details, but agree perfectly as to the substance of the settlement— that it was understood to include both suits. If the two suits were included, and Grumley so understood, the surrounding circumstances of the settlement cease to be of any moment; for they are important only as showing the understanding of the parties as to the scope of the settlement. It may be remarked, however, that Col. Broadhead’s recollection of the details of the • transaction aré not distinct, and he admits his inability to explain some of the undoubted facts of — 583 — the case so as to make them harmonize with certain of his impressions. He thinks, for instance, that Judge Krum was not with him and Grumley, in his (Broadhead’s) office, when the papers were examined and executed, but he admits that $6,500 of Webb’s money was there, and he is not able to explain .its presence in his and Grumley’s control, with no one there to represent the owner. Assume Judge Krum’s presence — and he swears positively that he was there — and the transaction is relieved of its obscurity. Krum must have been present. I have, to this point, considered the merits of the case apart from the merits of the contested settlement. That may deserve a brief consideration. When this cause was previously here, the record was quite barren of facts showing the state of the rent account between the plaintiff and defendants in the first suit. It was shown that a judgment had been rendered for $11,522.54, as for rent unaccounted for. The fair presumption was that the judgment, although excessive, was nevertheless somewhere in the viciuity of what was right. The evidence before us now dispels that illusion. The account is now presented and appears in the record in detail. Instead of showing an unpaid balance .of ■$>11,522.54, it shows a balance of only $4,089.19, thus evincing an error in the judgment of $7,433.85. The account, or the results of it, as the evidence shows, were exhibited to Grumley before the settlement, so that’ he acted with a knotvledge of the facts. Then again, the second suit indicated a claim of considerable gravity; $7,000 was claimed, and the claim did not appear to be extravagant for a dozen houses. But it is now shown, and by one of the plaintiff’s witnesses (Rhodes), that the buildings sued for, in their then condition, were cheap and nearly worthless structures. • He values them at from $50 to $100 each, and he says there were twelve or fourteen of them. Suppose they were worth, in the aggregate,- $1,500 ; that’sum added to $4,089.19 makes $5,589.19, and this latter sum represents the total of the plaintiff’s claims, under both suits, as those claims stood on the day of the settlement —Bigham & Webb being credited their commissions, and no interest being computed on either side. — 584 — The balance of interest was in favor of the plaintiff, although Bigham & Webb were considerably in advance in the earlier stages of the account. These facts were all known to the plaintiff when he received the $6,500 and gave a receipt, expressed to be in full of all claims and demands, and the receipt was explained to him by Col. Broadhead, who knew that all the claims in litigation were included in the settlement according to his Understanding of it, and according to the understanding of the counsel of the opposite party. Did’ he succeed in making his client understand the receipt as he understood it ? I deduce from the evidence, upon a careful review of it, the following summary of leading facts : 1. Col. Broadhead was the authorized and fully trusted representative of the plaintiff in his negotiations for a settlement. He was of the opinion, as he testifies, that Grumley would have settled for $3,000 had he advised it. 2. In these negotiations Broadhead came to a clear and definite understanding with the counsel of the opposite party that the settlement should include both suits. That was insisted upon and he yielded to the demand. 3. It therefore appears that the plaintiff’s counsel, Col. Broad-head, knew that the settlement was'understood to include the second as well as the first suit, and that it was understood by himself and the opposite party to be embraced in the receipt. 4. Thug, knowing and understanding the facts of the settlement, he expounded the receipt to his client. If the exposition was a fair one — and the contrary is not pretended — Grumley was thereby advised of the scope of the settlement and the import of the receipt as the same were understood by Broadhead and the opposite party. In a word, he was made to “know all about it,” and Broadhead testifies, as we have seen, that he supposed at the time that such was the fact. 5. This matter is not left to inference alone. Grumley’s knowledge is shown affirmatively by the testimony of Judge Krum. I find it to be true, as testified by this witness, that Grumley was in the witness’s office on the day of the settlement in company with Webb, and that he there recognized the settlement as including the subject-matter of both suits. — 585 — 6. Grumley’s subsequent conduct accords with this view, and is inconsistent with the notion that he believed the second suit was left to be fought out in the courts. He gave it no attention thenceforward for nearly a year and a half, or at least not enough attention, according to his own swearing, to ascertain that it had been dismissed, untill it had been out of court nearly eighteen months. 7. The settlement, assuming it to have embraced both suits, was still fair and reasonable. The evidence shows that the $6,500 paid by Webb was a full equivalent for the balance due on the rent account, and for the value of the houses sued for in the second suit. Now the receipt, as we have seen, must be construed in the light of these facts, and, being so construed, the result is in no way doubtful. The narrow construction, limiting its effect to the specific judgment, must be abandoned, and the broader construction, which gives effect to its general terms, adopted. These terms are comprehensive enough to embrace and discharge the second suit, and all causes of action then existing in favor of the plaintiff against the defendant, whether joint or several, and that is their effect. . Erom this it follows that the judgment of the court below, which was in favor of the plaintiff, must be reversed and the petition dismissed. I recommend that disposition of the case. Judge Bliss concurs. Judge Wagner dissents. Footnotes [*] The capitals and italics are those of the court. [Hep.'