167 P. 683 | Utah | 1917
The plaintiff sued the defendants, H. Bullen, H. A. Peder-son, J. W. RooHidge, George Wilson, and Roy Bullen, “doing business as the Dreamland Leasing Company of Utah,” to recover judgment for $676 and for the value of 8,200 shares of stock, alleged to be of the value of 10 cents per share. It is not necessary to refer to the pleadings, except for the purposes hereinafter indicated. The evidence is very short, and is practically without conflict. The action is based upon a letter, addressed to the plaintiff, which reads as follows (on letter head of Dreamland Leasing Company of Utah) :
“August 14, 1909.
“Mr. Wm. Gray, City — Dear Sir: This letter is written you in order to have a clear understanding of the condition of your account with the Dreamland Leasing Company, and it is to be considered as an acknowledgment of liability and if assigned to any other person their claim will be protected to that amount. According to my books, you have $550 due you on the drift and shaft contract and 4,000 shares of the stock of the company; on the drifting contract you have $126 due you and 4,200 shares of the stock — making in all $676*272 and 8,200 shares of stock. Dreamland Leasing Company of Utah, by J. W. Rooklidge, Secretary.”
Mr. Rooklidge, signer of the foregoing letter, testified that all of the parties named at the beginning of this opinion, except H. A. Pederson, were partners doing business as the “Dreamland Leasing Company of Utah.” The evidence, without conflict, is to the effect that the parties aforesaid had a lease on a certain mine in Nevada which they were developing; that they intended to organize a corporation on said lease, and in case that were done the plaintiff, in addition to the $676, was also to receive the 8,200 shares of stock, both of which are mentioned in the letter; that the plaintiff was employed by the defendants to do work on the mine aforesaid, and that, in so far as the stock was concerned, he was, in a sense, a partner, and was to receive the stock in case the mining lease was incorporated, but, so far as the $676 was concerned, he was not connected in any way with the defendants, but that he had earned that amount in working for the defendants named, except the defendant Pederson. The testimony also showed that another writing was entered into between plaintiff and the defendant Rooklidge, which reads as follows:
“Salt Lake, August 14, 1909.
“In consideration of the surrender of this statement to me, not later than sixty days from date, I hereby agree to pay the holder the sum of fifty dollars — notice to be given me ten days in advance by holder, and nothing is to be done before October 14, 1909. J. W. Rooklidge.”
Indorsed on back:
“Pd. $10.00 Dee. 6/10. Pd. $10.00 Jan. 6/11. Pd. $10.00 Feb. 6/11. $10.00 Mar. 20/11. $10.00 Apr. 17/11. Wm. Gray, Jr.”
That writing was pleaded as a defense, and it was shown without dispute that the $50 mentioned therein had been paid by Rooklidge to the plaintiff between December 6, 1910, and April 17, 1911. The court found that the payment had been made as aforesaid, and as a conclusion of law also found that the obligation assumed in the original letter had thereby been
"Where the debt or demand is liquidated or certain, and is due, payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, if there be no release under seal or no new consideration given. Payment of a less amount than is due operates only as a discharge of the amount paid, leaving the balance still due, and the creditor may sue therefor, notwithstanding the agreement. A court of equity has no power to enjoin collection of the balance.”
In Smoot v. Checketts, 41 Utah, 211, 125 Pac. 412, Ann. Cas. 1915C, 1113, the headnote correctly reflects the decision, and it is there sthted:
"When it is claimed that payment by the debtor of a sum less than is due to the creditor is a payment in full discharge of the entire amount due, a receipt acknowledging full payment is not controlling; but it must also appear that the payment was based on a sufficient independent consideration, or on a compromise of a disputed or unliquidated claim.”
The same principle is announced in the case of Rohwer v. Burrell, 42 Utah, 517, 518, 134 Pac. 573.
The case at bar leaves no room for controversy upon the question of an independent consideration. The agreement between Rooklidge and the plaintiff is in writing and speaks
For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake County, with directions to grant plaintiff a new trial. Costs to appellant.