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Washington v. Held

December 21, 1972

WASHINGTON, APPELLANT,
v.
HELD, RESPONDENT



Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge.

Donald H. Joyce, Portland, argued the cause and filed a brief for appellant.

R. William Riggs, Portland, argued the cause for respondent. With him on the brief were Willner, Bennett & Leonard, Martin J. Howard, and Groce & Howard, Portland.

In Banc. Holman, J.

Holman

This is an action for damages for the alleged wrongful garnishment of $73.34 of plaintiff's wages. Defendant counterclaimed for the balance claimed to be due from plaintiff to defendant on a promissory note. The trial court entered a judgment of involuntary nonsuit to plaintiff's cause of action upon the ground there was insufficient proof of malice, of damages, and of lack of probable cause. On a motion for a directed verdict, the trial court ruled that defendant's

note had been paid in full. Plaintiff appealed, complaining of the nonsuit.

No question has been raised on appeal concerning the propriety of filing an action on a note as a counterclaim to an action for wrongful attachment.

Plaintiff owed defendant approximately $1,600 on a judgment and a balance of $600 on a note. Plaintiff was cited as a judgment debtor into court by defendant for an examination of plaintiff's assets. When plaintiff appeared, the parties, at the suggestion of the court, attempted to settle their differences. Plaintiff was not represented by an attorney; defendant was. Following the conference between the parties, defendant's attorney drew the following document which was signed by both defendant's attorney and plaintiff:

" SETTLEMENT AGREEMENT

"I, HENRY H. WASHINGTON, hereby agree to pay to C. E. HEID the total sum of One thousand two hundred ($1,200) dollars in full settlement of his claims against me. Said $1200. shall be payable as follows:

"The sum of Three hundred ($300) dollars on or before January 16, 1967; the sum of three hundred ($300) dollars on or before February 15, 1967; the sum of two hundred ($200) on or before March 15, 1967; the sum of one hundred ($100) dollars on or before April 15, 1967; the sum of one hundred ($100) dollars on or before May 15, 1967; the sum of one hundred ($100) dollars on or before June 15, 1967; and the sum of one hundred ($100) dollars on or before July 15, 1967.

"Any payment that becomes delinquent shall bear interest at the rate of 6 percent per anum [sic]. In the event that the total sum is paid in full as each installment falls due there ...


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