Donohue v. Woodbury, 60 Mass. 148

Donohue v. Woodbury

60 Mass. 148 | Mass. | 1850

Shaw, C. J.

This is an action to recover a balance alleged to be due to the plaintiff for labor and services. The only question on the exceptions is, whether the directions to the jury were correct; and the court are of opinion that they were. If an offer of money is made to one, upon certain 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. Reed v. Boardman, 20 Pick. 441. This is quite distinguishable from a tender, not accepted, in discharge of any debt or debts, which must, in general, be absolute and untrammelled with any condition. It is also quite distinguishable from an accord and satisfaction, where something other than money is offered on one side, and received on the other, in satisfaction of some debt or duty.

The rule is well settled, that the payment of a part of a debt, though offered in satisfaction, is not a payment of the whole, and is no defence to an action for the balance. But that rule applies strictly to a case of debt, or a claim for a *151iquidated amount. It does not apply to an unliquidated claim for damages. Originally, the present was a claim for services, and was for unliquidated damages. Some services were admitted to have been rendered, but the amount was denied; and an offer was madh of a less sum than that claimed. The case was open to two inquiries, first, as to the time of service, and second, as to the rate. The offer therefore of $35 was both to liquidate the claim and pay that sum in satisfaction ; the acceptance of the offer fixed and liquidated the sum, in the nature of an insimul computassent, and eo instanti discharged it. Tuttle v. Tuttle, 12 Met. 551, 554.

In regard to the other point, it appears to us that the direction was right. Money could scarcely be paid by one to another without some words being spoken, or some purpose expressed. It was the duty of the agent, before receiving the money, to know what was said, and what was the purpose expressed; and if the words were so spoken, that, with ordinary care, he might have heard them, and through carelessness or inattention, he failed to do so, the acceptance was binding, as an assent to the terms. Exceptions overruled.