69 S.E. 243 | N.C. | 1910
This action was brought to recover $1,000, the amount due by the defendant for professional services alleged to have been rendered by the plaintiff as his attorney. There were two accounts, one for $1,000, which was presented, and liability for the same or any part thereof denied by the defendant, and the other for $125, composed of several items, one of which was disputed. The defendant enclosed a check for $125 in a letter dated 14 January, 1910, which contained the following statement: "Your favor of the 13th inst. with enclosures as stated, received and contents noted, and I thank you for the same. I enclose check ($125) in settlement of all accounts which you have against me to this date. Kindly acknowledge receipt." At the request of the defendant, the plaintiff enclosed an itemized statement of the account for $125 in his letter of 13 January, to which the defendant's letter of the 14th was a reply, and there was no reference in the letter of the 13th to any other account. The defendant, while not pleading accord and satisfaction or payment, or referring in his answer to the account for $1,000 as having been settled, contends that the collection of the check by the plaintiff is a bar to his recovery of the $1,000, or any part thereof, in this action. The court instructed the jury to find, from all the evidence, whether the letter of 14 January, 1908, was intended by the parties to include the account for $1,000, upon which this action was brought, or only the transactions covered by the account for $125, which is made up of several items or accounts. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
We think, upon a consideration of the correspondence between the parties and the other evidence in the case, that this question was properly submitted to the jury. The court told them that if the account for $1,000 was within the contemplation of the parties when the check was sent and received, the action would be barred by the receipt and collection of the check, otherwise it was not. If a check is sent in full payment of a debt and the creditor receives and collects it, he is bound by the condition annexed to its acceptance. He will not be permitted to collect the check and repudiate the condition. Kerr v. Sanders,
The letter of 14 January, 1908, was but one in a series of letters which passed between the parties during a lengthy correspondence. Those which immediately preceded and followed it refer only to (337) the account for $125, and make no reference to the other account for $1,000, which the plaintiff had said did not exist. In his letter to the plaintiff of 9 December, 1907, the defendant had distinctly refused to recognize the account for $1,000. He even declined to arbitrate the difference between them with reference to it, stating as his reason that there was nothing to arbitrate. In his answer he does not even suggest that there had ever been any accord and satisfaction of that account, and he avers that he had never paid anything on it or recognized it in any way. He defends by simply denying that any liability ever existed. We are not considering the question whether the answer can be amended so as to conform it to the proof, but merely the omission to plead the letter and check in bar of the action, as tending to show that the defendant did not regard the check as any satisfaction of the account for $1,000. But we need not rest our decision, even in part, upon the omission to plead payment or satisfaction of the account for $1,000, as we think the jury might well have inferred from the correspondence that the check was given to settle all disputes between the parties, as to matters which had no connection with the account for $1,000. We adhere to our former decisions that where a check is sent in full payment of an account, the creditor can not accept and appropriate the check and afterwards recover the amount of any item which was a part of the account. Having elected to take a part in satisfaction of the whole, he will be held to his agreement, but the principle of course does not apply to a transaction not embraced by the *275 account. Whether it is or not may often be a question of law upon admitted facts, but sometimes the evidence, as in this case, may be such as to make it a question for the jury.
A case requiring the intervention of a jury to ascertain the true intent of the parties, for the purpose of identifying the account or indebtedness to which reference is made, where a part of the amount alleged to be due is paid by check or otherwise in satisfaction of the whole, must be exceedingly rare. In the former decisions of the Court upon this subject there has apparently been no doubt as to the particular debt upon which payment of a part, in settlement of the whole, (338) was understood to be made, and each of those decisions rested upon the solution of some other question than the one now being considered. We must bear in mind that the defendant had asked by letter for a statement of the account for $125, which was itself composed of several accounts about which there was a dispute, and that the plaintiff enclosed, in his letter of 13 January, 1908, the statement called for and requested the defendant to send him a check for the amount, and in his letter of the same date to the plaintiff, the defendant agreed to send the check to pay that account when he received a copy of the judgment dismissing the Johnson suit. No mention is made of the present claim for $1,000 for other and distinct services rendered which had no connection whatever with the account for $125. It is also to be noted that the plaintiff had intimated that there might be one other charge for services added to the account for $125, and the defendant was anxious, apparently, to close up that account and prevent the addition of other items. At the time the letter of 14 January, 1908, was sent by the defendant, the parties were not negotiating for a settlement of the account for $1,000, and the plaintiff might fairly and reasonably have inferred from that letter, in view of the nature of the correspondence, that the defendant was referring only to the accounts which made up the claim for $125. No one can well read the correspondence without concluding that the letter of 14 January, 1908, referred to a series of accounts which did not embrace the present claim. If it had included that account, the general principle would apply, but to hold that plaintiff is concluded by the receipt and collection of the check, under the circumstances as they appear in this case, would be to decide contrary to the apparent intention of both parties.
The defendant alleged that the plaintiff had represented both parties to the litigation or controversy for professional services rendered to the defendant, in the settlement of which he now demands compensation. Evidence was introduced by the parties upon this question. It was fairly submitted to the jury, under proper instructions, and they decided against the defendant. (339) *276
There was some evidence for the jury to consider upon the other question, whether the plaintiff, at the request of the defendant, had rendered valuable services in the settlement of the litigation with W. H. Parrish and others. The motion for judgment as of nonsuit was, therefore, properly refused. There was no reversible error in the other rulings to which exceptions were filed.
No error.
Cited: Bank v. Justice,
