32 App. D.C. 392 | D.C. Cir. | 1909
delivered the opinion of the Court:
The first assignment of error relates to the admission in evidence of the books of account of plaintiff. The objection being general, we will not consider it here. The specific ground of objection should have been stated. W. T. Walker Furniture Co. w. Dyson, present term [ante, 90].
The other exceptions, are embraced in the general proposition that the court erred in declining to allow the rejected prayers of the defendant to the effect, that if, from the evidence, the jury believed that the defendant intended the check sent by him to the plaintiff to be a compromise and final settlement of the account between the parties, and transmitted it to the plaintiff on that condition, the acceptance and cashing of the check by the plaintiff constituted a liquidation of plaintiff’s claim. We think the defendant was entitled to such an instruction.
When it is clearly apparent from the facts in evidence that a certain sum is due from one person to another, the release of the entire amount upon payment of a part is without consideration and does not estop the creditor to sue and recover the balance. United States v. Bostwick, 94 U. S. 53, 24 L. ed. 65; Fire Ins. Asso. v. Wickham, 141 U. S. 564, 35 L. ed. 860, 12 Sup. Ct. Rep. 84; Chicago, M. & St. P. R. Co. v. Clark, 178 U. S. 353, 44 L. ed. 1099, 20 Sup. Ct. Rep. 924.
The rule is equally well established that, where a claim is unliquidated, or honestly in dispute, the payment and acceptance of a less sum than claimed operates as an accord and satisfaction, the compromise being a good consideration for the concession made.
“To constitute an accord and satisfaction,” said Judge Pier-point in Preston v. Grant, 34 Vt. 203, “It is necessary that the money should be offered in satisfaction of the claim, and the
In United States Bobbin & Shuttle Co. v. Thissell, 69 C. C. A. 651, 137 Fed. 1, it was held that, where an employer sent to an employee a check for wages, with a statement showing the rate of computation, which was a matter of dispute, and a receipt in full to date to be signed and returned, directing that, if the account be found not to be correct, check be returned, the acceptance and cashing of the check was a satisfaction of the claim.
In Fuller v. Kemp, 138 N. Y. 231, 20 L.R.A. 785, 33 N. E. 1034, the plaintiff, a physician, sent defendant a bill of $670' for professional services. On receipt of the bill, the defendant sent plaintiff a letter, not disputing the services, but questioning the justice of the charge, and inclosing a check for $400, which he stated in the letter was in full satisfaction of plaintiff’s claim. He also stated that he hoped plaintiff would look at the matter in the same spirit. Plaintiff retained and collected the check, and sent defendant another bill containing a credit of $400. In' an action to recover the balance it was held that, upon receipt of defendant’s letter, plaintiff had the alternative of promptly restoring the check or the extinguishment of the debt by its retention.
Nassoiy v. Tomlinson, 148 N. Y. 326, 51 Am. St. Rep. 695, 42 N. E. 715, is to the same effect. The court in that case said: “A demand is not liquidated, even if it appears that something is due, unless it appears how much is due; and, when it is admittéd that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of that term as applied to the subject of accord and satisfaction.”
Mr. Chief Justice Fuller, in Chicago, M. & St. P. R. Co. v. Clark, supra, cited the two preceding cases, among others, as authority for the proposition “that, where an aggregate amount
In Connecticut River Lumber Co. v. Brown, 68 Vt. 239, 35 Atl. 56, there being a dispute as to the amount due for a quantity of lumber, defendant sent plaintiff a check for the amount conceded to be due, with this letter: “We send you inclosed our check for ten hundred fourteen dollars and 35 — 100 ($1,014.35) in full settlement of all demands to date. If this is refused by you, we shall make the tender in a legal way.” It was held that the acceptance and collection of the check constituted a satisfaction of the claim.
Greenlee v. Mosnat, 116 Iowa, 535, 90 N. W. 338, was an notion by a client against his attorney to recover money collected by the attorney on the client’s insurance policies, the client asserting that the attorney’s fee was to be 10 per cent of the amount he collected, while the attorney claimed a larger sum. When the client came to the attorney’s office for the money collected the attorney offered a check for what he claimed was due in full satisfaction of the client’s claim. Check was accepted and cashed; held, that the debt was unliquidated, and that the plea of settlement should have been submitted to the jury.
In Neely v. Thompson, 68 Kan. 193, 75 Pac. 117, the amount of a claim being in dispute, the debtor mailed the creditor a statement of the account and a check, together with a letter stating that the check was in full satisfaction of the balance due on the account. The letter also contained the following: “Look it (the statement) over, and if there is any item you do not understand, if you will come to Leavenworth we will go through the original statements and I will explain it to you.” It was held that the creditor was bound to understand that, if he accepted the check, he took it subject to the condition that it should be in full settlement of his demand.
See also Ostrander v. Scott, 161 Ill. 339, 43 N. E. 1089; Tanner v. Merrill, 108 Mich. 58, 31 L.R.A. 171, 62 Am. St.
Tbe evidence in this case showed that there was an honest dispute between the parties as to the terms of the contract and the amount due thereunder. If, therefore, the defendant sent his check for the amount he was willing to pay in compromise,, intending it as a liquidation of plaintiff’s claim against him,, and if the plaintiff, when he accepted and cashed the check, understood, or from the facts should have understood, the conditions upon which it was sent, there was an accord and satisfaction.
The judgment must be reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. ■
