9 A.2d 290 | Conn. | 1939
The plaintiff brought this action to recover a balance of rent claimed to be overdue. The case was tried by the court and judgment entered for the plaintiff, from which the defendant has appealed. From the finding, with such corrections as the defendant is entitled to, the material facts are as follows: On March 9, 1938, the defendant was indebted to the plaintiff for back rent in the sum of $515. The plaintiff had endeavored to collect this amount through attorneys, but without result. The defendant had threatened to go into bankruptcy unless the plaintiff compromised for the sum of $200, which the defendant agreed to pay immediately, and the parties entered into an agreement whereby the defendant promised to pay $200 forthwith in full settlement. At the same time, a release was drawn up and executed by the plaintiff and placed in the hands of the defendant's attorney, in escrow, to be delivered to the defendant upon the payment agreed upon. Later, on March 16, 1938, the defendant, instead of paying the sum of $200, paid $160 and promised to pay the balance of $40 within twenty days, to which extension the plaintiff agreed. The defendant failed to pay the $40 within twenty days, but on May 9, 1938, the defendant's attorney sent a check for $10 on account, which was accepted and cashed by the plaintiff, and no further payments were made thereafter.
The defendant claims that the amount due to the plaintiff was unliquidated and in dispute and that the agreement of March 9th was a substitute contract entered into in settlement of a disputed claim and that suit could be brought, therefore, only upon the substitute contract and not upon the original claim. This contention cannot be sustained upon the finding made, *46
which is supported by evidence and cannot be corrected, that the claim was for $515, which was the amount of the rent remaining unpaid, and that statements have been rendered, from time to time, to the defendant showing this amount to be due. The court further found that the reason why the agreement was made on March 9th to take a lesser sum in full settlement was because the defendant had threatened to go into bankruptcy and thus avoid paying anything. The trial court held that the agreement was not in itself an accord and satisfaction. Whether it was or not would depend upon the intention of the parties; Riverside Coal Co. v. American Coal Co.,
Another claim of the defendant is that by accepting the $10 from the defendant's attorney on May 9th the plaintiff waived her right to insist upon the payment of the entire indebtedness because of defendant's failure to pay the balance of the $200 at the time fixed. "Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding. This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them." MacKay v. Aetna Life Ins. Co.,
The claim that the release discharged the indebtedness *48
is answered by the fact that it was delivered in escrow upon a condition never fulfilled. The release did not become effective until the condition had been performed and the release delivered to the releasee. Stiebel v. Grosberg,
At the trial, the defendant claimed that the time to pay the balance of the settlement had been extended "until the fur season started" and had asked corrections of the finding to support this claim. Even if we should correct the finding to show that the plaintiff's attorney gave the defendant to understand that he would not press him for payment of the balance due until the season for selling furs started, any such promise would be ineffectual because it was not supported by any consideration. Simone v. Kirschner,
There is no error.
In this opinion the other judges concurred.