Dorgan v. Piehn

51 N.W. 34, 84 Iowa 564

• Court: Supreme Court of Iowa
• Decided: February 4, 1892
• Status: Published

Opinion

Robinson, C. J.

—In March, 1885, the defendant, Christine Piehn, recovered judgment for three hundred and forty-two dollars and fifty cents damages and one hundred and seventy-seven dollars and twenty-nine cents costs against William H. Dorgan and J. E. Dorgan, who are the plaintiffs in this case, and also against Cyrus Oar kins, Butterfield Carkins, Allen Lewis and others, for a joint tort committed by all the persons against whom the judgment was rendered Of the amount recovered, fifty dollars were remitted. The plaintiffs allege that .in March, 1886 Cyrus and Butterfield Carkins and Lewis each paid Christine Piehn sixty dollars, and received from her receipts which were substantially alike, and that the following is a copy of one given to Butterfield Carkins:

“New Hampton, Iowa, March 30,1886.

“Received of Butterfield Carkins sixty dollars ($60) in full satisfaction and in full of all demands, of whatsoever nature or kind, now held by myself against him, and especially in full of all demands against him by reason of a certain judgment running to myself, and against Butterfield Carkins. and others, and recorded in book 7, on page 105, Judgment Docket Record, Chickasaw county, Iowa; this receipt intending to cover all moneys due me thereon, and running from said Butterfield Carkins; and this receipt being and is to be considered an entire release of the said judgment, so far as the said Butterfield Carkins is concerned. Cheistine Piehn.”

It is insisted that, since the judgment in question was rendered for.a joint tort, a release as to one of the defendants operated to release the judgment as to all, and therefore that the judgment has been satisfied, and cannot be enforced as to the plaintiffs. The evidence shows that there was an attempt made to have the judgment satisfied by the payment of a portion of the amount which it represented. Each of the judgment debtors named was to pay the sum of sixty dollars, but, it is claimed by the defendants, was not to be discharged from liability for the costs. The parties met, and three receipts were signed by Mrs. Piehn. Cyrus and Butterfield Carkins and Lewis were to pay money for their respective shares, but the Dorgans did not have the money, and it was arranged that James E. Dorgan should confess judgment for one hundred and twenty dollars on account of their share of the amount to be paid. W. H. Dorgan was not present, but James was acting for both. A statement for the judgment by confession was prepared, bnt-before it was executed Dorgan demanded a receipt similar to those prepared for Ms co-defendants, and one was drawn; but tbe attorney for Mrs. Piehn added to it the words, “Defendants to pay costs.” Dorgan refused to accept it in that form, and the settlement proceeded no further. The attorney for Cyrus and Butterfield Carkins and Lewis had deposited on the table one hundred and eighty dollars, and had taken the receipts which had been prepared for his clients. The provision in regard to the payment of costs had been overlooked in drawing those receipts, and when attention was called to the omission Mrs. Piehn demanded that the provision be inserted, asked for a return of the receipts and refused to accept the money. The receipts were carried away, however, and the money which had been left was finally taken by Mrs. Piehn, but whether to preserve for the persons who had paid it orto use for her own benefit does not appear. It is shown, however, that, as a conditon of settlement, Mrs. Piehn required the payment to herself of three hundred dollars, and the satisfaction of the judgment as to costs. The judgment debtors refused to pay the amount agreed upon, and the proposed settlement did not become effectual. The three receipts which were signed were never delivered, but were wrongfully taken by the attorney for the persons in whose favor they had been drawn. Since the agreement of settlement was not carried into effect, there is no ground for claiming that the judgment in question is satisfied, and the court properly denied the relief the plaintiffs asked. AFFIRMED.