Hand Lumber Co. v. Hall

41 So. 78 | Ala. | 1906

WEAKLEY, C. J.

“The rule that the payment of a less sum than the real debt will be no satisfaction of a larger sum without a release by deed applies only to conceded or undisputed demands. Where the claims are in dispute the compromise and.part payment thereof are sufficient consideration to support the discharge.”— 24 Am. & Eng. Ency. Law (2d Ed.) p. 288. The-cases of Barron v. Vandvert, 13 Ala. 232, Pearson v. Thompson, 15 Ala. 700, 50 Am. Dec. 159, and Hodges v. Tenn. Implement Co., 123 Ala. 573, 26 South. 490, each involved an indebtedness by note, and in those cases there was no dispute as to the existence of the indebtedness as evidenced by the written obligations. In each of them thé holding was that on part payment of the debt, without surrender of the note, the agreement by the creditor to accept in discharge of the debt a less sum in money than the debtor owed was a nude pact, constituting no bar to a recovery of the balance. Those cases, therefore, do not at all conflict with the settled rule above announced, and which has also been thus stated: “When a' claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed in satisfaction operates as an accord and satisfaction, as the rule that the receiving of a part of the debt due, under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the balance, does not apply when the plaintiff’s claim is disputed or unliquidated. In such case the concession made by one is a good consideration for the concession made by the other. The fact that the creditor was not legally bound to make any abatement of his claim, or that the amount accepted was much less than the creditor was entitled to receive and would have recovered, had he brought action, does not in any way affect the rule.” — 1 Cvc. 229.

■It is quite true that section 1805 of the Code of 1896, declaring the effect of written releases, receipts, and discharges, has no application to this case,- because the plaintiff gave no writing of the kind mentioned in that section. A release, however, at least of a simple contract debt, need not be in writing, and no set form of words is necessary.. It may be by parol, may be express or implied or may result by operation of law. — 24 Am. & Eng. Ency. Law (2d Ed.) 284. The dictum in Hart v. Freeman, 42 Ala. 567, that the Code section corresponding with section 1805 of the Code of 1896, requires settlements for the composition of debts to be in writing, was declared in Singleton v. Thomas, 73 Ala. 205, to be erroneous as a general proposition, although correct in the particular case -wherein it was uttered. The questions for consideration in this case, therefore, are, first, whether the claims of the plaintiff beyond the'sum paid him were conceded, or whether they were disputed or unliquidated; and, second, whether, if the latter, they were discharged by what was written and done between the parties, taken in connection with the collection by the plaintiff of the check, under the circumstances shown by the undisputed evidence.

The appellee contends that “the evidence does not show, nor tend to show, the claim of the plaintiff against defendant for services sued for in this case was ever disputed, nor that the plaintiff’s claims against J. I). Hand, or Hand Export Company, or the Baldwin County Bank Avere ever denied,” Avhile the appellant contends just the contrary. The.evidence must therefore be examined to settle this question of fact, controverted between counsel. The plaintiff’s suit was first brought for $100, and then amended so as to claim $250, and was upon the common counts.' He testified to having been employed by defendant to render legal services in three cases, but had no contract as to the amount to be paid in any of the cases, and he offered evidence of attorneys as to Avliat Avas a reasonable fee in each case. He claimed, prior to collecting the check, to which Ave refer more fully later on, that he should be paid $30 in the “Lady Jane Tug Case,” for which item he had presented a bill at one time for $22.50, and Avhen the check was received there was a suit pending by the plaintiff to recover the sum of $30 for- said fee. The plaintiff testified that he had a yearly retainer from Mr. Hand of $50 for what Ave may designate generally as certain small legal services, not including the services for AArhich this suit is brought. Mr. Hand, however, testified that he had an arrangement or contract with the plaintiff Avhereby he was to pay him $50 per year for whatever services he might.call upon him to render for himself or his companies; and that he employed plaintiff- to do Avhatever he was called on to do for any of the companies the witness Avas interested in, which Avere the Hand Export Company, the Hand Lumber Company, the Hand Land Company, and the Baldwin County Bank. It was conceded that the retainer of $50 for the year, whatever it included, had been paid. Hand further testified that on one occasion the plaintiff told him that the cases in Baldwin county were covered by the fee, meaning the retainer, while the witness said he told plaintiff he understood the retainer to also cover the “Lady Jane tug fee.” Plaintiff, according to the testimony of the witness, replied that he thought otherwise, whereupon Hand said, according to his testimony, that he would see if the captain of the tug would pay that bill. This review of the evidence has disclosed, we think, a controversy as to. the amount of one item, and, further, there was serious controversy as to whether the services were not all included in the retainer, which had been paid. Nor was any item of the account liquidated.

The question of law then arises whether the receipt and collection- of the check, under the circumstances shown,' settled plaintiff’s claim in full.. A plea of release is in the record, and appellee concedes it was sufficient as a pleading to present the defense on ■ which appellant relies. The check and-voucher as first sent the plaintiff were declined, and plaintiff would not receive the check in full of the services, as stated in. the face of the check and voucher. Plaintiff proposed, however, that if defendant would erase from-the check the words “in full of all accounts,” and return the check he would accept it as payment for his fee in the.tug case. Hand did not do as plaintiff proposed, but prepared another check and voucher, under the same number, the voucher being attached to the check, and the latter on its face stating it was to cover voucher 478; that, being the number of the-voucher attached/ From this voucher it appeared the check was given “in full of all services rendered tp any or all of the following companies, namely: Hand Lumber Company, Tug Lady Jane, Hand Export Company.” The plaintiff detached the voucher, collected the check, and thereupon sued the Hand Lumber Company in this action.

We cannot construe the correspondence and action of the parties otherwise than as constituting a proposal to the plaintiff to pay the amount of the check in ' full settlement of all claims méntioned in the voucher, and as the acceptance of the proposal'by the plaintiff; thereby releasing the defendant from further liability; and the plaintiff will not be heard to say he accepted it only in payment of his fee in the tug case. The plaintiff must have known the tender ivas made on condition, and, having accepted and collected the check ivas bound by the condition. — 1 Oyc. 333 “While a mere tender, though of the whole amount due, when unaccepted,- does not operate to extinguish or satisfy the claim,'yet when made in full of the amount due and accepted; without protest as to its sufficiency, the debt becomes extinguished. The creditor may reject a tender on condition that he receive it in full of his claim; but, if he accept it, he is bound by the condition, and will not be allowed to keep the money and repudiate the conditions.” — Hanson v. Todd 95 Ala. 328, 10 South. 354. The plaintiff, no doubt-, in the course he pursued, supposed he Avas safe in doing so, because a somewhat similar action Av-as held in Hodges v. Tenn. Implement Co., 123 Ala. 573, 26 South. 490, not to constitute full satisfaction of the debt; but that case involved an undisputed indebtedness and is distinguishable from this.

The defendant was entitled to the general affirmative charge, and for the refusal to give it, as requested in writing, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, Simpson, and Anderson, JJ., concur.