188 Mo. App. 639 | Mo. Ct. App. | 1915
Plaintiff began this suit in a justice court upon an open account of $51.28 for certain patterns, fashion books, coupons, coupon books and pattern case delivered to defendant. She recovered judgment for $56.87 in the circuit court where the cause was tried on appeal and defendant appealed to this court.
On February 16, 1969, plaintiff, doing business in Jefferson City under the trade name of the New Idea Dry Goods Company, and defendant, a publisher of patters in New York, entered into a contract in writing which granted to plaintiff “the right to act as special
The agency created under this contract was the only agency of defendant in Jefferson City and was continued until about November 1, 1913, when defendant, without notice to plaintiff, entered into a contract with another merchant in Jefferson City for the establishment of a second agency in that city. Construing her contract with defendant as granting her an exclusive agency for the sale of defendant’s patterns in Jefferson City and concluding that defendant had breached the contract in appointing another agent, plaintiff informed defendant of her determination to end the contract at once and was directed by defendant to return the stock of patterns she had on hand. In a letter dated November 3, 1913, plaintiff inquired of defendant “shall we remove patterns from envelop in returning
On November 19,1913, plaintiff shipped the entire stock to defendant as directed and sent an invoice by mail which showed the following goods returned:
2016 patterns at 7-Jc...................$151.20
492 patterns at 5c................... 24.60
12 Fashion Books @ 17-Jc............ 2.10
1 Case ........................... 5.00
36 coupon books @ 7~|c.............. 2.70
5 coupon books @ 7-|c.............. .38
1 package of Patterns .............. 1.27
Total............................$187.25
No discount on the patterns was allowed in this invoice but they were charged back at the full prices plaintiff had paid for them, though the contract, as we have shown, provided for the return of patterns “at three-fourths of the cost thereof,” if the agency should be terminated by written notice.
At the time the stock was shipped plaintiff was indebted to defendant in the amount of $91.82, which, deducted from the invoice price of the stock left a remainder due her of $95.43. On December 22, 1913, defendant wrote' plaintiff: • “Tour account shows an unpaid balance to December 1, of $24.60,” and requested payment of that amount. Plaintiff returned this letter with a marginal notation: ‘ ‘ This is absurd when you owe us for stock returned, etc., and we have written you to settle by December 31st.” January 7, 1914, plaintiff wrote defendant: “After breaking your contract with us by placing patterns with Schultz
Defendant replied January 10th: “An immediate adjustment will be made and asking your indulgence until we can write you further in the matter, we are, ’ ’ etc. On January 26th, defendant wrote to plaintiff: “Enclosed please find our check for $44.15 in final settlement of your pattern account as per statement attached. We trust you will have no difficulty in checking it. ’ ’ The check enclosed with the letter bore the following printed receipt on the back: “The payee hereby acknowledges receipt in full settlement of account as stated on memorandum which was attached to this cheek duplicate of which is on payor’s files. ’ ’ Attached to the check was a memorandum as follows:
“January 26, 1914.
“New Idea Dry Goods Co.,
“Forty-four 15-100.
“In full settlement of all claims to date ... .$44.15 “Jefferson City, Mo.”
The statement of account enclosed with the letter and check showed a balance of $44.15 by giving plaintiff no credit for the item of $5 charged for the pattern case returned and by deducting twenty-five per cent from the invoice price of the patterns returned. Plaintiff deposited the check after altering the printed receipt by erasing the word “full” before the word “settlement” and writing in the word “part” and after receiving the proceeds of the check brought this suit.
The letter, receipt on the check and statement of account stated in terms about which there could be no
The rule uniformly recognized in the decisions in this State is that where a tender is made upon the express condition that its acceptance will constitute a full settlement of a claim about which there is an honest dispute, an acceptance of such offer is an acceptance of the condition and constitutes an accord and satisfaction though the offeree in accepting the money claimed more, or declared he did not take it in full. [School Board v. Hull, 72 Mo. App. 406; Andrews v. Contracting Co., 100 Mo. App. 599; Cornelius v. Rosen, 111 Mo. App. 619; Knapp v. Syrup Co., 137 Mo. App. 472; Ward v. Packing Co., 145 Mo. App. 574.]
Where a tender is made upon condition, the person to whom it is made has no alternative but to refuse it or to accept it subject to the condition. [Adams v. Helm, 55 Mo. 468; Lightfoot v. Hurd, 113 Mo. App. 612.]
Where the claim is liquidated and there is no bona-fide dispute over its amount or the liability of the debtor, a tender of less than the full amount, though accompanied by the declaration that it is made in full satisfaction, will not, if accepted, be treated as an accord and satisfaction, since such a tender has no consideration to support it; but where there is an honest disagreement as to sum due, or of the debtor’s liability,
In the instant case there was an honest disagreement between the parties. The agency contract did not say in express terms that plaintiff was to have an exclusive agency for defendant in Jefferson City and there was serious question whether or not a grant of such agency should be inferred from all the terms of the contract. If she was not entitled to an exclusive agency, defendant did not breach the contract in appointing an additional agent and plaintiff had no right to terminate the contract without giving three months’ written notice. In that view of the case defendant was not bound to accept a return of the patterns at a greater value than three-fourths of their cost. On the other hand if the contract gave plaintiff an exclusive agency she had a right to rescind on defendant’s breach in appointing another agent, and to return the stock to defendant but there was a question as to whether or not, regardless of the actual value of the stock she was entitled to receive credit for it at its full cost prices. It is not necessary for us to decide which party had the better position as to such questions. It is enough for us to know that the claim of plaintiff was not liquidated or definitely ascertained but was the subject of serious and honest disagreement between the parties. The acceptance of the conditional tender under such circumstances was an acceptance of the condition and the court erred in sending the case to the jury.
The judgment is reversed.
