Abbott v. Andrews, 130 Mass. 145

Abbott v. Andrews

130 Mass. 145 | Mass. | 1881

Lord, J.

It is common learning, that if a party, for the purpose of buying his peace, or effecting a compromise with his adversary, offers to discharge him upon receiving an amount less than his due, no advantage can be taken of such offer if not accepted, and evidence of it upon a subsequent trial is incompetent.

The question in this case is, Is the evidence offered and admitted of such character? We are of opinion that it is not. It is true that the bill of exceptions finds that the plaintiff Andrews offered evidence tending to show that his compensation was to be $24 per week; and that the evidence objected to and admitted was Andrews’s declaration that he was willing to accept in settlement $18 per week. If that were all that appeared, the evidence would have been clearly incompetent, as being only evidence of an offer to take less than his claim, and in compromise of it. But that is by no means all; nor was it presented to the presiding judge as that question; nor could it be, upon the facts as reported. True, the plaintiff now contends that he was to be paid $24 per week; and this evidence was tendered to show, among other things, that before suit brought he had never claimed $24 per week, but that the extent of his claim was $18 per week, and that when he suggested a settlement at $18 per week, neither he nor the other party understood that he was offering to accept less than his due, but both parties understood that, if his offer should be accepted, it would be the other party, and not he, that made concession to arrive at that compromise. This is quite apparent upon examining the evidence tendered. As reported in the bill of exceptions, it is thus: “ The plaintiff was asked if he would settle by their books, to which he replied that he would not; that their books were not correct; that the salary was not correct; that he had been having $18 per week: *148that Abbott replied, 6 No, I reduced your salary in August 1875 to $15 per week,’ which the plaintiff denied; ” and then comes the part objected to: “ Andrews said, I am willing to settle if you will call my salary $18 per week up to the time I left; there will not be much difference any way, a trifle in my favor, but I am willing on those terms to pass receipts and call it square.” Clearly, there is nothing in the nature of concession for the sake of peace in this conversation; there is no abatement of any part of the claim as he then made it, but he is claiming to the full extent all that he ever claimed before the trial, and is appealing to the other party to yield something in his favor. At first blush, indeed, it would seem a little singular that the defendants should put in evidence, against the objection of the plaintiff, the fact that he claimed a larger amount than they admitted to be due, to wit, $18 per week instead of $15. It is to be remembered, however, that three suits were tried together, and that in one of those suits he made claim against the defendants to a large amount upon notes and due-bills upon which the defendants denied their liability; and it is contended that this evidence was both competent and important as tending to show that, at the time he made the declarations, he could not have had a valid claim of many hundred dollars against the defendant, and that although upon the question of salary the declarations offered in evidence were in favor of the party making them, yet upon the great and important issues in the case they left a decided implication against the validity of his other and larger claims. However this may be, inasmuch as no objection is made to the evidence except that it was an offer of compromise upon the subject of salary, we cannot regard its bearing in any other light, and it was clearly not objectionable as an offer of compromise.

Exceptions overruled.