105 Ga. 300 | Ga. | 1898
On February 20, 1897, Stewart brought two suits upon promissory notes against Hamilton & Company, which were afterwards consolidated and tried as one suit. Upon one note appeared a credit of two hundred dollars, dated May 7, 1891; and upon the other a credit of $776.62, dated February 15, 1894. The defendants pleaded that the payment of $776.62 was made by them in full satisfaction of the note, and was'so accepted by the plaintiff. It appeared from the evidence, that on the date last mentioned the defendants made out a statement, in which the plaintiff was charged with sundry items of cash advanced at various times from December 23,1891, to October 11, 1892, with interest to February 15, 1894, $132.02, and with the remittance at the time of $776.62. The account was balanced by crediting plaintiff with the two notes which are sued on, besides interest. The statement of account just described was sent to the plaintiff in a letter, in which it was stated: “We enclose you statement of your account, and our check to cover balance due you. Kindly cancel our notes and return to us.” No reply having been received to this letter, on March 12, 1894, defendants wrote to plaintiff as follows: “On February 15, last, we sent you statement of your account and our cheek to cover balance due you, and requested that you cancel the notes held by you and return to us. Will you kindly attend to this at •once ?” It appeared that the plaintiff retained the check which was inclosed in the first letter, and collected the amount due thereon. No objection was made to the terms of the settlement •contained in the letter until a few months before the present suit was filed. Upon this evidence the judge directed the jury to
When Hamilton & Company made out the -statement in which was set forth the amount admitted by them to be due, and requested that their notes held by Stewart be canceled and returned to them, this was, in effect, a proposition to compromise the indebtedness of each to the other upon the terms stated in the letter. It was the same as if Hamilton & Company had written to Stewart: We will pay you $776.62 in cash, upon the condition that you accept the same in -full satisfaction of the notes held against us, and upon no other condition are you authorized to retain the amount which we remit. So construed, it was incumbent upon Stewart, either to accept the proposition, or decline it. The effect of the -second letter was to ask an answer to the proposition submitted. In such cases it is incumbent upon the party to whom the proposition is made to answer the same either by accepting or refusing within a reasonable time. The retention of the amount forwarded, declared to be in full settlement of the claim held by the person to whom it is sent, coupled with a failure within a reasonable time to decline-the proposition, will raise a conclusive presumption of an acceptance of the terms and conditions set forth in the proposal. While of course a party can not be bound by a settlement unless-he assents to its terms, still this assent may be implied from the-circumstances, and conduct inconsistent with a refusal would raise a presumption of assent, upon which the other party would, have a right to act. Nothing could be clearer than the proposition that where one person delivers to another property, to be-retained upon a condition stated, the party receiving it can not retain the property and repudiate the condition. In the case of Fuller v. Kemp (N. Y.), 33 N. E. Rep. 1034, it appeared that the plaintiff had sent a bill of six hundred and seventy dollars-to the defendant, and that the latter declined to pay the bill rendered, but sent a check for four hundred dollars, stating that it was to be in full satisfaction of plaintiff’s claim-. Plaintiff retained the check, but sent another bill for the same amount as the first bill, on which he credited the amount' of the check as-
Judgment reversed.
