119 Me. 383 | Me. | 1920
This case arose from a transaction wherein the plaintiff sold and delivered to the defendant a quantity of potatoes. The latter is a dealer in and shipper of that commodity. Part payment was made at the time of delivery, and a memorandum given stipulating that the balance was to be paid when the defendant sold and shipped the potatoes to some one of his customers. In preparation for such shipment it became 'necessary to rack the potatoes. The defendant claims that this operation disclosed the fact that a portion of the stock was unmerchantable, although, as he further claims, he bought and was to pay for merchantable potatoes only. Thereupon he sent to the defendant a statement of account, based upon his claims, accompanied by his check for the amount due according to those claims. Both were enclosed in a letter, which quite fully and clearly sets forth the defendant's claims, and closed with the words “Herewith check to balance.” The plaintiff at once wrote the defendant as follows:
“I received last night $377.68 on account of what you owed me. You remember Mr. Doyle that I sold you 237 bbl. of potatoes at $3.25 a barrel. I have the paper here that you made last fall. Now Mr. Doyle I think I have waited long enough and I would be pleased if you could send me the balance $192.57. Let me hear from you, by return mail if possible.” The record does not disclose that the defendant made any reply to this letter.
The plaintiff cashed the enclosed check and retained the proceeds. In this suit he seeks to recover the balance referred to in his letter, and has been awarded a favorable jury verdict.
The defendant presents exceptions to a ruling admitting this letter in evidence, and a general motion for a new trial based upon the usual grounds. The contention, both in the exceptions and in the motion, center about the claim of the defendant that there was an accord and satisfaction which constitutes a bar to this suit.
In Mayo v. Stevens, 61 Maine, 562, this court said, “In order to render payment of part an extinguishment of the whole debt under this statute, both parties must concur in the understanding, that the amount paid is paid and received as and for the whole debt.”
Wellington v. Monroe Trotting Park Company, 90 Maine, 495, was a case where a plaintiff claimed that his horse w on first money in a race. The defendant claimed that the horse won second money, which was a sum less than that claimed by the plaintiff. The defendant sent the plaintiff a check for “second money.” The plaintiff cashed the check and notified the defendant that he would not accept
In a more recent case, Price v. McEachern, et al., 111 Maine, 573, after fully discussing the principle now under consideration, and especially as found in Chapin v. Little Blue School, 110 Maine, 415, Mr. Justice Spear said “The receipt of a check purporting to be for the balance of an account, and the use of it, in the absence of an agreement to accept in payment in full is not an accord and satisfaction.”
We do not overlook cases relied upon by the defendant. In Anderson v. Standard Granite Company, 92 Maine, 429, it was held, “If an offer of money is made to one, upon terms and conditions, and the party to whom it is offered takes the -money, though without words of assent, the acceptance is an assent de facto and he is bound by it. The acceptance of the money involves the acceptance of the condition. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied and no words of protest even can affect this result.”
But in commenting on Anderson v. Granite Co., supra, the court in Price v. McEachern, supra, noted that the Granite Company case required proof, either express or implied, of both offer and acceptance. Depending upon Anderson v. Granite Co., supra, Price v. McEachern, supra, and Horigan v. Chalmers Motor Co., 111 Maine, 111, the defendant claims that the understanding by the creditor of the offer made by the debtor is to be determined by the standard of what a reasonable man would have understood under like circumstances. To a great degree this claim is well founded, but there still remains the duty and obligation to prove, by direct or implied testimony, what the debtor’s intention was, and that the creditor, or the ordinarily reasonable man under the circumstances, should have understood that intention. But understanding the intention of the debtor and acceptance by the creditor so as to constitute accord and satisfaction- are not necessarily one and the same thing, as we have seen in eases alreadj cited. True, if the debtor adds to his intention a condition that if the creditor accepts he does so in full settlement of the claim, and, fully understanding both the intention and the condition; the Creditor does accept, then accord and satisfaction are established as a bar to subsequent suit upon the
This brings us back to the proposition that accord and satisfaction is a question of fact to be submitted to the jury, Laroe v. Sugar Company, supra, unless the testimony is such that only one inference or finding can be made. This case was submitted to the jury and the record abundantly shows that it was done under proper instructions by the presiding Justice. The real issue was tried out by the panel which sat upon the case. As bearing upon that issue the letter, the admission of which is made subject of exception, was properly admitted.
Upon most careful examination of the record and giving full effect to the very able brief of defendant’s counsel, we are unable to say that either the ruling or the verdict was wrong.
Motion and exceptions overruled.