96 Mo. App. 348 | Mo. Ct. App. | 1902
Under the stipulation of the parties, the first question for us to determine is, was the defendant’s liability limited in the event of a failure to fully perform its contract to a return of the amount of money received from the plaintiffs! If so, the plaintiffs were not entitled to recover. The clause in the contract in reference to this'matter is as follows': “After the plant is erected, we (defendant) to furnish an engineer to have charge of the operation of the
■ It is obvious that the stipulation in the case had reference to only one matter, and that was the right of defendant to enter plaintiff’s-premises, and remove the
It being agreed, “that the advanced purchase money is admitted to have been in the liquidated sum of $3,800, and that, under the facts proved, it was un-. conditionally due from appellant’s at the time the release was executed,” the question submitted is, “was said release valid,” and we suppose that when the parties used the word valid they did so with the understanding that the court was to determine whether it was efficacious, for the purposes- claimed by the defendant.
The respondents contend, that - said release is void for want of consideration.' That is to say, that the money in question paid to them was liquidated 'and due and there being no other or further consideration, the release could have no effect in extinguishing plaintiffs ’ claims for unliquidated damages. In Railway v. Clark, 92 Fed. Rep. 968, the court held: “Payment by a debtor of a liquidated amount, presently due, and to which he has no defense, that can be urged in good faith, or with color of right, is not, by itself, a sufficient consideration to sustain a release by the creditor of other unliquidated claims against the debtor.” The facts in that case were that the defendant “was indebted to plaintiff in amounts which were due and liquidated and undisputed, rendered him a statement of account, in which he was credited with such amounts only, and was charged with certain cross-demands, which were unliquidated and open to dispute. It tendered payment of the balance shown by the statement to be due, on the execution by him of a receipt in full, which accompanied the statement. “It was held, that the execution of the receipt, and the making and acceptance of the payment, did not constitute an accord and satis
The question was before the Supreme Court in McCormick v. City of St. Louis, 166 Mo. 315. The court among other things discussed the principles we are considering as follows: “Appellants final suggestion, that as defendant only paid what it acknowledged and conceded to be due, the agreement on his part, evidenced by his receipts in full satisfaction and discharge of all demands, was without consideration, and only operated as a discharge of so- much of his claim as was actually paid, and not that part involved in the present suit, is erroneous in this, that he overlooks the fact that the amount due under the several contracts with the defendant city was at all times in dispute, at least so far as the plaintiff was concerned. Though the city only paid at last what it at all times acknowledged to be due, and had expressed its readiness to pay under the terms of the contract, it was not bound to pay that until the plaintiff would agree to accept it in full satisfaction of all demands, and this constitutes in law a sufficient consideration to support a settlement made. ’ ’ The court in its opinion seems to recognize the principle announced and upheld in the foregoing authorities, but the difficulty arose as to its proper application to the facts of the case.
Notwithstanding there was some disagreement between the parties at and prior to the time of the signing and delivery of the release as shown by the erasures and interlineations on its face, and by other evidence, as to what items should be allowed in making up the sum total, that plaintiffs had paid on the contract, the defendant by its stipulations for the submission of the case waived all controversy as to that matter, and the case now stands as if there had been no such disagreement, and said sum of $3,800 is to be considered as
Because defendant required a release for all claim for damages before it would pay what was admittedly due, does not bring the case within the rule in McCormick v. City of St. Louis, supra, where the claims were held to have been at all times in dispute. In this cáse, they had not been asserted and were not in dispute at any time prior to the execution of the release. Applying the principle of the foregoing case, it is clear that the release is invalid. The cause is affirmed.