Fetz v. Leyendecker

Hooker, J.

This cause was appealed by the defendant. The findings filed by the trial judge are, in substance, that: (1) Plaintiff recovered a circuit court judgment for $52 damages, costs $37.07, against the defendant on February 17, 1894; (2) on the same date Brenner recovered a circuit court judgment against defendant for costs taxed at $37.92; (3) on June 9, 1903, Brenner assigned his judgment to plaintiff; (4) on August 6, 1897, one Averill, claiming to represent Henry J. Felker, the at *356 torney of record for the prevailing party in both of said cases, accepted from the defendant $12 in full settlement of both judgments, giving his receipt therefor; (5) later said Eelker stated to defendant that all matters between them were settled. He afterwards denied to the plaintiff that he had received payment on said judgments, and that they, or either of them, were settled. It was held, as conclusions of law, that the $12 received by Averill was part payment on the judgments, and that there was no consideration for the agreement of settlement, and that plaintiff was entitled to judgment for the balance thereof, with interest, and gave judgment accordingly;

Exceptions were taken to the refusal to find (1) that the judgments were taken by default when defendant was absent from the State; (2) that he made preparations to reopen the cases and set aside the default, and that Eelker was duly authorized to and did settle the judgments to avoid litigation. Exception was also taken to the finding that Eelker denied to plaintiff that he had received payment upon or had settled the judgments; also to his refusal to find as a conclusion of law that:

“I find that both judgments mentioned in plaintiff’s declaration were default judgments, and that steps were being taken to set aside said defaults, and that, to avoid litigation, the parties settled the same, and that same are in law discharged, and that a judgment of no cause of action should be entered in said cause, with costs to the defendant to be taxed.”

There was a dispute in the testimony as to the authority of Eelker to settle these judgments, and the learned circuit judge refused to find that he had such authority. He also found that there was no valid consideration for the acceptance of $12 in settlement thereof. Both were questions of fact. Defendant could not prevail unless he established the fact that Felker was authorized to settle the case. The court refused to so find, and defendant could not prevail, although it were found that the agreement with Averill was upon a valid consideration. But *357 the court said it was not. The only consideration claimed is that defendant told Averill that he would rather reopen the case than pay more than $10. In view of the fact that the judgments were then three years old, or thereabouts, the judge might well hesitate to find that such suggestion was any inducement to the settlement, or so considered. He found the contrary, and we think it was not error. Even if it were, the failure of the court to find authority was fatal to the defense. There is no occasion to discuss other questions.

The judgment is affirmed.

Montgomery, Ostrander, Moore, and Brooke, JJ., concurred.