Benson v. Haywood , 23 L.R.A. 335 ( 1892 )

Given, J.

The facts necessary to be noticed are these: On March 26, 1890, the plaintiff, Benson, obtained his judgment against the defendant Haywood, of which facts the defendants, Chapman and Irwin had knowledge", they being engaged as attorneys in that case. At the August- term following a verdict was returned in favor of the defendant Haywood against the plaintiff, Benson, in another action, wherein Chapman and Irwin appeared as attorneys for Haywood. On August 28 following the verdict, hut before judgment was entered thereon, Chapman and Irwin filed notice claiming an attorney’s lien “upon the judgment” for services as attorneys, for seventy-five dollars each, ■and on the same day they filed an assignment as follows:

“Stobm: Lake, Iowa, August 28, 1890.

“For value received, I hereby assign, transfer, and .-set over to T. H. Chapman and Chas. A. Irwin, all my right, title and interest in and to the judgment this ■day recovered by me in the case of Jonas Haywood v. E. W. Benson for legal fees due from me to them for labor and services performed for me in the above ■entitled case. Jonas Haywood.”

On August 30 judgment was rendered on the verdict against the plaintiff, and in favor of Haywood, ■and on September 3, 1890, executions were issued on •both judgments, and placed in the hands of the defendant James, as sheriff, who refused to offset the one .against the other, and thereupon this action was brought. The right of Chapman and Irwin to an •attorney’s lien is not questioned, nor is the validity of the assignment to them. There is no allegation of fraud or want of consideration, and the evidence shows that the value of their services to Haywood in the case was equal to the amount of the judgment.

,1. evidence: SrumentsV inad^Ilim“e to contradict. I. The appellants introduced evidence, over appellee’s objection, tending to show that the consideration íor assignment was service rendered as attorneys for Haywood in the action wherein the judgment against Benson was r6n(jere(j 0f the amount of eighty-two dollars and fifty cents, and fifty-five dollars for services rendered for Haywood in another case. The assignment from Haywood 'recites that it was “for legal fees due from me to them for labor and services performed for me in the above-entitled case.” , The above-entitled case is Jonas Haywood v. E. W. Benson. There is no allegation of fraud or mistake in the making of this writing, nor is it ambiguous or its meaning uncertain. It plainly states the consideration to be labor and services in the ease wherein the judgment was rendered, and the evidence introduced is in direct contradiction of this plain recital, and therefore not admissible. The appellants cite Moore v. Lowrey, 25 Iowa, 338, and Foster v. Trenary, 65 Iowa, 623, where it is held that such an assignment may be verbal or in writing, “and if in writing, and the intent and contract of the parties is not fully expressed therein, it may be shown by evidence aliunde.” In this assignment the intent and contract is fully expressed, and, under familiar rules, that writing may not be contradicted, in the absence of an allegation of fraud or mistake. This evidence cannot be considered, but the consideration must be taken to be as expressed in the writing.

2. Judgments: assignment: set-off. II. The appellants contend that it is only mutual judgments that may be set off; that to be mutual they must in fact belong to the respective parties; and that, by the assignment, the judgment against the plaintiff ceased to belong to Haywood, and is therefore not a mutual judgment. The appellee’s contention is that under section 3097 of the Code, and also uhder the rules of equity, the right to have these judgments set off against each other arose when, by the verdict, it was determined that the plaintiff was indebted to the defendant Haywood; and that by the assignment Chapman and Irwin took the judgment subject to all defenses which Benson has against it, including the right of set-off. .It requires no citations to show that the judgments must be mutual. If it were not for the attorney’s lien .and assignment, there would be no question of the right of either party to have these judgments set off. It is well established that the assignee of a judgment takes it subject to any defense which the judgment debtor may have against it. Code, section 2546; Edmonds v. Montgomery, 1 Iowa, 143; Hurst v. Sheets, 14 Iowa, 322; Davis v. Milburn, 3 Iowa, 170; Burtis v. Cook, 16 Iowa, 194; Preston v. Turner, 36 Iowa, 671; Ballinger v. Tarbell, 16 Iowa, 491; Tiffany v. Stewart, 60 Iowa, 211. The attorney’s lien is upon “money due-his client in the hands of the adverse party.” Code, section 215. The plaintiff having the right to have the amount due from him to Haywood set off by his larger judgment against Haywood, there was no money due from him upon which the lien could attach.

We understand the appellants to rest their defense upon the assignment- alone; hence the matter of the-lien need not be further noticed. The question is whether the valid assignment of a judgment deprives the judgment debtor of the right to thereafter have a. judgment in his favor against the assignor rendered in a different action before the assignment set off against judgment assigned. The basis of the right to set off judgments is not different from the right to set off mutual claims of any kind. If these parties had held mutual accounts against each other, and one of them had assigned his account against the other to a third person, and that person sued upon it, the right of the-one sued to set up his account against the assignor, as an offset, would hardly be questioned. In such case the assignee takes the account subject to defenses. There is no distinction between such an assignment, and the assignment of a judgment. It seems to us. entirely clear that Chapman and Irwin took this judgment subject to the plaintiff’s right to offset it with his judgment-, even though at the time they did not know that the judgment in favor of the plaintiff was unpaid. Tiffany v. Stewart, 60 Iowa, 207, supports the view we= have expressed. In that case two judgments were rendered against Henderson in favor of Tiffany, for costs on appeal, which Tiffany had paid. Upon the final trial judgment was rendered in favor of Henderson and against Tiffany. Tiffany sought to offset the judgments in his favor against that in favor of Henderson. Stewart, White and Parks claimed an attorney’s lien and assignment of the verdict and judgment in favor óf Henderson. Tiffany asked an injunction against the defendants Stewart, White and Parks, to restrain them from collecting the judgment against him. This court held that the injunction should have been granted. What is said in that case applies with equal force to this. It is true those judgments were all rendered in the progress of the same action, but they were separate and independent judgments, and though, as said, “they were more than mutual in the ordinary sense of that term,” that does not question the mutuality of these judgments. See, also, Ballinger v. Tarbell, 16 Iowa, 491; Burtis v. Cook, Id. 194, and other cases cited above.

The decree of the district court is aeeirmed.