Ball v. McGeoch

Cassoday, J. The pleadings, stipulation, documentary evidence, rulings of the court, and offers of testimony on the part of the plaintiff are voluminous, but are sufficiently indicated in the foregoing statement. The claim of the plaintiff is for a balance due for ’ a liability incurred and money advanced at the request of the defendants and for — 170 — their use and benefit, in June, 1883, in the purchase and sale of lard on the board of trade in Chicago. The principal defense alleged is, in effect, an accord in writing, whereby the plaintiff and other creditors of the defendants upon the board of trade agreed to accept fifty per cent, of their indebtedness in full settlement of the same, followed by the plaintiff’s payment of the amount of his claim in satisfaction thereof, evidenced by a receipt and release in writing, signed by the plaintiff. The plaintiff, to prove his case, among other things, was sworn and examined in his own behalf. On cross-examination by the defendants’ counsel he testified that he received the fifty per cent, mentioned, and thereupon gave the receipt and release dated July 20, 1883, and which appears in the foregoing statement as “ Exhibit I); ” and the same was thereupon offered in evidence by counsel for the defendants, without objection. Subsequently, on redirect examination, he testified to the effect that he signed the receipt in pursuance of a compromise paper which had previously been signed, which paper or accord in writing was dated July 2, 1883, and thereupon identified by the witness, and a copy thereof, with the signatures omitted, is designated in the foregoing statement as “Exhibit C.” Exhibit C was thereupon offered in evidence by the plaintiff’s counsel, but was finally excluded, together with each and all the several offers of testimony mentioned in the foregoing statement. Such rulings were put upon the ground, in effect, that although the proposed evidence of false representations and fraud was sufficient to avoid the accord, yet that the release was given several days thereafter and makes no reference to it and settles matters not mentioned in it, and must therefore be regarded as a separate, independent, and voluntary release, based upon a different consideration, and having a different effect. It is claimed that such rulings were justified by the prin — 171 — ciple oí law so firmly settled in this state, to the effect “ that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be' received to alter or control their written agreement.” Herbst v. Lowe, 65 Wis. 320; Hubbard v. Marshall, 50 Wis. 322; Hooker v. Hyde, 61 Wis. 208; Liebscher v. Kraus, 74 Wis. 388; Andrews v. Youmans, 78 Wis. 58. “This is on the theory that all such prior negotiations are either merged in or excluded by the contract finally made. The same is true in respect to any prior- preliminary agreement, in so far as it is covered by, or in conflict with, the final contract.” Lbid. It will be observed that the rule stated has no application when such written agreement has been procured by fraud. Ibid. See, also, Zimmer v. Becker, 66 Wis. 527; Kercheval v. Doty, 31 Wis. 476. As indicated, the principal defense here alleged was a full settlement by way of accord and satisfaction. Not being a counterclaim, nor pleaded as a part of a counterclaim, it was to be deemed controverted by the plaintiff as upon a direct denial or avoidance, as the case might require. Sec. 2667, R. S. Upon the issue thus raised, it was competent for the plaintiff to prove that his signature to the release was procured by false representations and fraud. Leslie v. Keepers, 68 Wis. 127-8, and cases there cited. This is, in effect, conceded, but it is claimed that the false representations sought to be proved were confessedly operative only in procuring the accord, but did not extend to the procuring of the release. It will be observed from the foregoing statement that the compromise paper alleged in the answer provided for the payment by the receiver of fifty cents on the dollar; that the payment therein alleged to have been made, and for which the release was given, was for the same per cent, and by the same receiver. Exhibits C and D substantially correspond with the compro — 172 — mise paper and release so alleged in the answer. The release purports to be in consideration of $21,390, paid by the receiver “ as a full compromise and adjustment,” etc.; and that is the same amount admitted in the complaint to have been paid, and alleged in the answer to have been paid, and stipulated by the defendants to • have been paid, as and for a full settlement and compromise. The release purports to be given as a compromise and settlement, and presupposes such an agreement to compromise, and yet there is no pretense that there was any more than one agreement for such compromise. The accord had its inception in the form of a proposition from the defendants to their creditors upon the board of trade, not to be binding “ until each and all of said creditors ” had signed the written acceptance thereof. Whether the signing of such acceptance by the several creditors was a sufficient consideration to make the proposition binding upon all, is not involved in this appeal. In the rulings of the learned trial judge he treated the accord as not a binding composition among creditors, but, at most, as an accord between the plaintiff and the defendants. Of course, it is well settled that a mere accord without satisfaction is not binding. Palmer v. Yager, 20 Wis. 91; Otto v. Klauber, 23 Wis. 471; Schlitz v. Meyer, 61 Wis. 418; Sieber v. Amunson, 78 Wis. 682; 1 Am. & Eng. Ency. of Law, 94. The accord is executory in its nature. It called for payment to be subsequently made by the defendants. It did not in express terms call for a receipt and release on the part of the plaintiff and the other creditors, but it required “ the amount of each claim to be settled and adjusted ” by the receiver, and this fairly implied the taking of such receipt and release. It is true the proposition, to compromise emanated from the firm alone, and the accord is silent as to the “validity” of the claim; whereas the release acknowledges the receipt of the amount paid by the plaintiff — 173 — “ as a full compromise and adjustment of the validity, and in final settlement, satisfaction and discharge,” of all claims against the firm and the individual members thereof. Rut the accord did provide for the determination of any disagreement between the receiver and any creditor as to the amount of any claim, and that such payment should be “in full settlement and liquidation ” of all such claims; — clearly implying that the fifty cents on the dollar of the amount so agreed upon should be in full settlement and liquidation of such claims, respectively, whatever might be the contention of the parties respecting the same. Besides, the invalidity of the plaintiff’s claim was alleged in the answer, and under the statute the same was deemed controverted by the plaintiff, and expressly reserved for the determination by the court in the stipulation on the part of the defendants. It does not conclusively appear that there is a necessary repugnance between the accord and the release. They both relate to the same subject matter.' The release contains no new contract, like some of the cases cited. For aught that appears upon the face of the papers, the release may have been given on the receipt of the money in.satistion of the accord. If it was so given, and if the plaintiff’s signature to the accord was procured by the false representations and fraud of the defendants and their agents in the matter, and the plaintiff, without knowing the facts, was induced by such accord, false representations, and fraud, to give the release, then we are unable to perceive upon what principle of law the release should be held binding upon him. On the contrary, we are forced to the conclusion that the plaintiff was at liberty to show that such accord was procured by false representations and fraud, and that the same were carried forward and operative in procuring the release. The question presented seems to come within well-established elementary rules. 1 Greenl. Ev. §§ 288, 284, and cases there cited. See, also, in addition — 174 — to cases cited by counsel, Harman v. Richards, 10 Hare, 81; Richards v. Hunt, 6 Vt. 251, 27 Am. Dec. 545; Stafford v. Bacon, 1 Hill, 532; King v. Leighton, 100 N. Y. 386; Olvey v. Jackson, 106 Ind. 286; Strong v. Strong, 102 N. Y. 69; 1 Am. & Eng. Ency. of Law, 106 (17), and cases there cited. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.