VARIAN, Commissioner.
Respondent, plaintiff in the court below, instituted this action to recover judgment upon a promissory note executed to him by appellant, and for a balance due upon an open account. A writ of attachment issued and was levied upon an automobile owned by defendant. After the action was commenced the parties apparently reached an amicable settlement of their differences whereby defendant agreed to transfer to plaintiff the automobile then under attachment and give his note together with certain cash consideration. After the settlement had been negotiated, plaintiff, claiming the automobile held under the
attachment was not the car he was to receive, rescinded the compromise agreement and offered to return the consideration received by him, except $21 cash deposited by defendant to plaintiff’s credit. The tender was refused. Defendant answered and by way of affirmative defense alleged the compromise settlement and compliance therewith. The cause was tried to a jury and, under instructions to the effect that the settlement was binding upon the parties unless it be shown that the agreement was consummated by fraud or mutual mistake of a material fact, a verdict was rendered for plaintiff. This appeal is from the judgment entered on the verdict.
Before the cause was heard in this court, respondent moved to dismiss the appeal upon the ground that appellant had received and accepted benefits under the judgment, thereby waiving his right to appeal. The motion was supported by affidavits tending to show that appellant, since the judgment, had removed parts of the attached ear, paid storage thereon, and otherwise exercised the right of ownership therein. Counter-affidavits were filed denying that appellant had exercised the rights complained of, or paid any storage on the car since the compromise agreement was reached. The motion was submitted at the time the case was argued on the merits. We have examined the affidavits and conclude that the evidence does not sustain respondent’s contention, and therefore the motion to dismiss should be denied.
It is first contended that a valid compromise agreement operates as a merger and bar of all included claims and pre-existing causes of action and any subsequent remedy of the parties, with reference to matters included therein must be based on the agreement. Voluntary settlements of controversies are always favored by the courts.
(Heath v. Potlatch Lumber Co.,
18 Ida. 42, 108 Pac. 343, 27 L. R. A., N. S., 707;
Smith v. Farra,
21 Or. 395, 28 Pac. 241, 20 L. R. A. 115;
McIsaac v. McMurray,
77 N. H. 466, 93 Atl. 115, L. R. A. 1916B, 769.) If, however, the agreement of compromise was accomplished by fraud or
false representations (12 C. J. 348), or through a mutual mistake of a material fact, so that the minds of the parties cannot be said to have met in making the settlement, the agreement is subject to impeachment (12 C. J. 351), and, if the fraud or mistake vitiates the agreement as a whole, the parties are placed in their original position; and all rights which are transferred, released or discharged by the agreement are revested, restored, or discharged by the avoidance. (12 C. J. 359.)
The rule is thus stated in
State v. The Southwestern Rail
road, 66 Ga. 403:
“A mistake in a settlement of a suit pending in court, before it is entered of record and made the judgment of the court, always opens it to investigation, and before it is entered it may be corrected; and if it vitiates the settlement as a whole, it should not be made the judgment of the court at all.”
The evidence shows that defendant, previous to the proceeding herein, had possession of two Steams-Knight automobiles of the same design, one, termed by the parties as the “Morton” car, being of considerably more value than the other. Plaintiff, at the time of the issuance of the attachment writ, gave positive instructions to his attorney to have levy made upon the “Morton” car, and, at the time the settlement was made, had not discovered that the car attached was, in fact, the other car. Plaintiff testified that, in making the settlement, defendant “told me he was turning over this Morton car to me.” His testimony in this regard is corroborated by the witness Haynie, who, it appears, was a mutual go-between of the parties in arranging the settlement. Defendant testified that the only car under consideration at the time of making the settlement was the one held under the writ of attachment and that was the car he understood he was to transfer. Plaintiff testified in effect that he did not know that defendant owned two Steams-Knight cars until after the settlement.
Conceding that information as to which car had been attached was equally available to both parties, if defendant
did state that he was turning over the “Morton” car it was a statement of a material fact, false, and made under such circumstances that he knew that plaintiff, in making the compromise settlement, relied upon it. Therefore plaintiff had the right to rely upon said statement without inquiring further as to its truth or falsity.
(Watson v. Molden,
10 Ida. 570, 580, 79 Pac. 503;
Baird v. Gibberd,
32 Ida. 796, 189 Pac. 56.)
The court amended certain of defendant’s requested instructions and gave them as amended. It is insisted that the amendment changed the effect of the requested instructions so that any false representation or mistake would be sufficient fo nullify a compromise agreement. It is unnecessary to set forth a detailed consideration of the instructions complained of but is sufficient to say that, when all the instructions are read and considered as a whole, in connection with the facts and circumstances of the ease
(Lyons v. Lambrix,
33 Ida. 99, 190 Pac. 356;
Warner v. Pittsburgh-Idaho Co., Ltd.,
38 Ida. 254, 220 Pac. 492), the amended instructions are not susceptible of the construction given them by defendant.
Evidence of a conversation between plaintiff and Haynie, the go-between, previous to the settlement, as to what sum the plaintiff would allow for the “Morton” car, was admitted over objection. This is assigned as error. The testimony was material as tending to show the basis for Leaper’s conclusion as to which car he was dealing for.
In making a tender of the consideration received under the settlement, plaintiff did not offer to return the cash consideration received thereunder. Where a party to a compromise agreement desires to set aside or avoid the same and be remitted to his original rights, he must place the other party
in statu quo
by returning or tendering the return of whatever has been received by him under such compromise. (12 C. J. 355; 5 R. C. L. 899.) An exception to this rule exists in cases in which the party rescinding would be entitled to retain the money or property received even though the compromise be set aside. (12 C. J. 356;
5 R. C. L. 900;
Biddlecom v. General Accident Assur. Corp.,
167 Mo. App. 581, 152 S. W. 103;
Fox v. Hudson’s Exrs.,
150 Ky. 115, Ann. Cas. 1914A, 832, 150 S. W. 49;
Howard v. McMillen,
101 Iowa, 453, 70 N. W. 623;
Newark etc. Co.
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VARIAN, Commissioner.
Respondent, plaintiff in the court below, instituted this action to recover judgment upon a promissory note executed to him by appellant, and for a balance due upon an open account. A writ of attachment issued and was levied upon an automobile owned by defendant. After the action was commenced the parties apparently reached an amicable settlement of their differences whereby defendant agreed to transfer to plaintiff the automobile then under attachment and give his note together with certain cash consideration. After the settlement had been negotiated, plaintiff, claiming the automobile held under the
attachment was not the car he was to receive, rescinded the compromise agreement and offered to return the consideration received by him, except $21 cash deposited by defendant to plaintiff’s credit. The tender was refused. Defendant answered and by way of affirmative defense alleged the compromise settlement and compliance therewith. The cause was tried to a jury and, under instructions to the effect that the settlement was binding upon the parties unless it be shown that the agreement was consummated by fraud or mutual mistake of a material fact, a verdict was rendered for plaintiff. This appeal is from the judgment entered on the verdict.
Before the cause was heard in this court, respondent moved to dismiss the appeal upon the ground that appellant had received and accepted benefits under the judgment, thereby waiving his right to appeal. The motion was supported by affidavits tending to show that appellant, since the judgment, had removed parts of the attached ear, paid storage thereon, and otherwise exercised the right of ownership therein. Counter-affidavits were filed denying that appellant had exercised the rights complained of, or paid any storage on the car since the compromise agreement was reached. The motion was submitted at the time the case was argued on the merits. We have examined the affidavits and conclude that the evidence does not sustain respondent’s contention, and therefore the motion to dismiss should be denied.
It is first contended that a valid compromise agreement operates as a merger and bar of all included claims and pre-existing causes of action and any subsequent remedy of the parties, with reference to matters included therein must be based on the agreement. Voluntary settlements of controversies are always favored by the courts.
(Heath v. Potlatch Lumber Co.,
18 Ida. 42, 108 Pac. 343, 27 L. R. A., N. S., 707;
Smith v. Farra,
21 Or. 395, 28 Pac. 241, 20 L. R. A. 115;
McIsaac v. McMurray,
77 N. H. 466, 93 Atl. 115, L. R. A. 1916B, 769.) If, however, the agreement of compromise was accomplished by fraud or
false representations (12 C. J. 348), or through a mutual mistake of a material fact, so that the minds of the parties cannot be said to have met in making the settlement, the agreement is subject to impeachment (12 C. J. 351), and, if the fraud or mistake vitiates the agreement as a whole, the parties are placed in their original position; and all rights which are transferred, released or discharged by the agreement are revested, restored, or discharged by the avoidance. (12 C. J. 359.)
The rule is thus stated in
State v. The Southwestern Rail
road, 66 Ga. 403:
“A mistake in a settlement of a suit pending in court, before it is entered of record and made the judgment of the court, always opens it to investigation, and before it is entered it may be corrected; and if it vitiates the settlement as a whole, it should not be made the judgment of the court at all.”
The evidence shows that defendant, previous to the proceeding herein, had possession of two Steams-Knight automobiles of the same design, one, termed by the parties as the “Morton” car, being of considerably more value than the other. Plaintiff, at the time of the issuance of the attachment writ, gave positive instructions to his attorney to have levy made upon the “Morton” car, and, at the time the settlement was made, had not discovered that the car attached was, in fact, the other car. Plaintiff testified that, in making the settlement, defendant “told me he was turning over this Morton car to me.” His testimony in this regard is corroborated by the witness Haynie, who, it appears, was a mutual go-between of the parties in arranging the settlement. Defendant testified that the only car under consideration at the time of making the settlement was the one held under the writ of attachment and that was the car he understood he was to transfer. Plaintiff testified in effect that he did not know that defendant owned two Steams-Knight cars until after the settlement.
Conceding that information as to which car had been attached was equally available to both parties, if defendant
did state that he was turning over the “Morton” car it was a statement of a material fact, false, and made under such circumstances that he knew that plaintiff, in making the compromise settlement, relied upon it. Therefore plaintiff had the right to rely upon said statement without inquiring further as to its truth or falsity.
(Watson v. Molden,
10 Ida. 570, 580, 79 Pac. 503;
Baird v. Gibberd,
32 Ida. 796, 189 Pac. 56.)
The court amended certain of defendant’s requested instructions and gave them as amended. It is insisted that the amendment changed the effect of the requested instructions so that any false representation or mistake would be sufficient fo nullify a compromise agreement. It is unnecessary to set forth a detailed consideration of the instructions complained of but is sufficient to say that, when all the instructions are read and considered as a whole, in connection with the facts and circumstances of the ease
(Lyons v. Lambrix,
33 Ida. 99, 190 Pac. 356;
Warner v. Pittsburgh-Idaho Co., Ltd.,
38 Ida. 254, 220 Pac. 492), the amended instructions are not susceptible of the construction given them by defendant.
Evidence of a conversation between plaintiff and Haynie, the go-between, previous to the settlement, as to what sum the plaintiff would allow for the “Morton” car, was admitted over objection. This is assigned as error. The testimony was material as tending to show the basis for Leaper’s conclusion as to which car he was dealing for.
In making a tender of the consideration received under the settlement, plaintiff did not offer to return the cash consideration received thereunder. Where a party to a compromise agreement desires to set aside or avoid the same and be remitted to his original rights, he must place the other party
in statu quo
by returning or tendering the return of whatever has been received by him under such compromise. (12 C. J. 355; 5 R. C. L. 899.) An exception to this rule exists in cases in which the party rescinding would be entitled to retain the money or property received even though the compromise be set aside. (12 C. J. 356;
5 R. C. L. 900;
Biddlecom v. General Accident Assur. Corp.,
167 Mo. App. 581, 152 S. W. 103;
Fox v. Hudson’s Exrs.,
150 Ky. 115, Ann. Cas. 1914A, 832, 150 S. W. 49;
Howard v. McMillen,
101 Iowa, 453, 70 N. W. 623;
Newark etc. Co. v. Citizens Nat. Bank,
90 N. J. Eq. 282, 110 Atl. 130;
Scott v. Bevilacqua,
226 Mass. 554, 116 N. E. 563.) If there is no dispute as to the amount due and the creditor is induced by fraud to accept a less amount, he may attack the settlement without returning what he has received. (5 R. C. L. 900;
Fox v. Hudson’s Exrs., supra.)
In the instant ease the amount originally owing plaintiff was admitted — the damages were liquidated — and if the compromise agreement were set aside, the defendant would still owe plaintiff the amount thereof, less any payments made by him. If plaintiff retained the cash payment, which was less than the sum owed, defendant’s rights are not prejudiced because the debt upon which it is applied was a valid and subsisting debt against him. No tender of the cash deposited was therefore necessary.
The parties stipulated upon the trial that, in case plaintiff should prevail, the court should allow a reasonable attorney’s fee for the collection of the promissory note. There was no error in making the allowance fixed by the court.
We recommend that the motion to dismiss be denied and the judgment be affirmed, with costs to respondent.
McNaughton and Brinck, CC., concur.
The foregoing is approved as the opinion of the court and the motion to dismiss is denied and the judgment affirmed. Costs to respondent.
Wm. E. Lee, C. J., and Budge, Givens and T. Bailey Lee, JJ., concur.