Foster v. Trull — 12 Johns. 456

Majority

p. 456

Foster against Trull. Woodford against the same.

Headnote

no?rbeeSnrpv”á woce™l,ibtseitfhe Md^qt^vorn" pigraaTüelost® coúntia for.'ac".

B. have suits forinent, depend..ang against each other, an agree-agent to discontinue their'redíscoritinulnc”1 pordaabd°|atisi

ldftsCeiT)0ay te. evidence^ S^ber Suction bfPthe minutes of the icoutt. ■ *■ ■

THESE were actions of .assault and battery, .andfalse imprison? tnent, tried at the Onondaga circuit,. in- June .last, before Sir. Justice Van Ness.;, .- . ■ ' - ■ • ■ ; -

¡ -It'ivas proved that the defendant, Tridl, who was .a captain in the army of the United States, ■ in consequence of Ms having suffered, in an .attempt to remové- the plaintiffs and others,-' out of. a house- in which they lodged-, and where they were making a , *>' °. ’ ■ J ° noise and disturbance, ordered a sergeant, one Trueman Curtis, .. * ' o ? .... ? with, sixteen soldiers, armed with muskets and bayonets: to arFest the plaintiffs and others, and-confine thém in-the military guai’d house. The. order of the defendant was executed, and the -plaintiffs, were c.ohfined in, the guard house, from 11 p?clpck at night, until the next morning. ^

. The defendant proved that actions óí assault and battery^ and false- imprisonment, had been brought in the court of Common . * ■ i ° ‘ f leás, óf the county QÍOñonaaga,,by each of ihe above plaintiffs^ a gainst the defendant,, and Trueman’’Curtis, in which; they had been arrested by the sheriff,'.and the.writs returned, “taken?*'' copies'pf which writs .were produced;' and the defendant also produced-writs issued out of the same .court,, in- favour of True? man Curtis, against each' of the plaintiffs, for airassault .and battery .and false imprisonment,- with.the sheriff’s- return of cepi corpus thereon endorsed; and which .suits’ were - brought by ■Curtis for false imprisonment, under pretence of the other suits, Curtis, testified.that, he acted as. a principal, and gave orders, under Trull, in the arrest and imprisonment of, the plaintiffs, for;which the present suits were brought.

The defendant then offered to .prove,, by Curtis, that he had 'been, sued by ■ the plaintiffs,. severally, for the same false inn prisonment, but no writs were produced. This evidence- was objected to ; but admitted, subject to the qpiniqn of the court, Curtis testified, that he and Foster, one of the plaintiffs, came to p .settlement of both of the above suits, and of the. several suits pf fhe -plaintiffs against him. . On which, settlement, Foster paicj

p. 457

Curtis 40 dollars. A memorandum of the settlement, signed by Poster, was produced, and was as follows: “ This is to certify, that the suits commenced by me, and Solomon V/oodford, against Trueman Curtis, (Marsh and Rice, attornies,) are discontinued and discharged, which I bind myself, my heirs and representatives, never to prosecute for the same. Manlius, 27th of May, 1813. S. M. C. Foster.” It was also proved, that Curtis directed his attorney to discontinue the suits in his favour, against the plaintiffs, and that they were stopped, and Curtis paid the costs of prosecution. This evidence was objected to, without the records of the court being produced, but admitted, subject to the opinion of the court. It was proved by Curtis and Foster, that since the settlement of the suits, Woodford, on being informed of it, said it was correct, and that he was glad of it, and approved of what Foster had done. The defendant also offered to prove that Mr. Rice issued writs in favour of Foster and Woodford, severally, against Curtis, and that he was arrested on them, which ivas objected to, unless the writs or records were produced, or it was shown that they were lost; but the testimony was admitted, subject to the opinion of the court,

Sill, for the plaintiffs,

contended, 1. That the pendency of the suits against Curtis, and the discontinuance of the suits by him, ought to have been proved by the record, and not by paroi.^[1]

2. That the pretended settlement was no more than an accord, without a satisfaction, and, therefore, no bar.^[2]

Wendell, contra,

insisted, that there was. evidence of a complete accord and satisfaction ; that a reasonable satisfaction was sufficient, especially in the case of a tort.^[3]

delivered the opinion of the court. There can be no question, that paroi proof, respecting the existence of process issued out of a court, is inadmissible. The process itself must be produced, or a sworn copy ; and if the original is lost,' it ought to be accounted for. Jt is somewhat extraordinary that this was not done on the trial of these causes. There are strong reasons to believe, that the writs which were issued in the various suits first commenced by those parties against each other, ■with £he sheriff’s return endorsed, were never filed in the clerk’s

p. 458

office, after the .written agreement in relation to those . suits faá stated in, the case) "had been enteréd into,, but remained in the hands of the respective plaintiffs, who, probably; destroyed them. As nothing of this sort; however., appears from. the testimony,, no notice can. be taken of the paroi proof respecting the process and commencement of the suit. The decision-of the present causes must depend on the effect .of the settlement made between the parties.". ' : '' .

The only question to be discussed is, Whether this, settlement, and the circumstances which, immediately ensued, can. be deerned evidence'of accord andsatisffidtiony.sd.astobaf the present • actions. This, I am inclined to think, is" the fair deduction-from the written agreement, and that part of the testimony connected with' it, which the court aye authorized; .on legal pri-nci-, pies, to receive.

The written agreement admits that suits had beén brought by Foster & Woodford against Curtis, which rendered the production of the process in those Suits,, to, show that they .were commenced, unnecessary ; apd it could'not conclusively be: made to appear that they were for the same cause of action with the suits now brought by them, in- any other way than by paroi proof.- -As far,;, therefor,e,., as Curtis's evidence: went to' .show that fast, it ought to be received. He declares that" he/had been sued.by the plaintiffs severally for the same false imprisonment, which is the subject of controversy in the present suits;. and the acceptance of a similar agreement frqm Curtis by Foster, shows the satisfaction to be, rendered: by Curtis. The agreement purports, to.be for suits commenced, and is not confined to the" suit brought against them jointly. The accord'extended to the suits mentioned by-Cwrtts in his-evidence; .and, if so," it remains only to show, that. sajtiHactibn-followed it';, for the,law-cannot be questioned,, that accord, without satisfaction, is an insufficient,, or bad defence. 1 .. - . - ' ■ .

1 .do- hot think it wa-s* indispensably .necessary tó producé' the .record showing the discontinuance of Curtis’s süils, -in making out a compliance with the respective agreements.: Sufficient appears.withput it. It is-in-evidence that the suits Were stopped, . according to Curtis’s directions to his attorney, .and he paid the costs. From those circumstances We have reason to infer, that the writs were never tied in; thú clerk’s" office.- All this taken together, is a sufficient-discontinuance; and must.

p. 459

and ought to be deemed such a compliance with the written agreements, interchanged between Foster and Curtis, as to amount to a satisfaction; and, if so, then the present suits are at an end.

The recognition by Woodward, of Foster, as his agent, appears to be explicit and satisfactory. He declared, after the settlement, that it was correct; that he approved of wliat Foster had done in his behalf, and agreed to it. He, therefore, is bound by this agreement, which has been fully satisfied as to him; for the suit against him, in favour of Curtis, was also stopped, and the costs thereon paid. The- written agreement, therefore, taken in connexion with the other circumstances, is sufficient evidence of accord and satisfaction to bar the present actions. The defendants are entitled to judgment in their respective causes.

Judgment for the defendants*