23 Ind. App. 673 | Ind. Ct. App. | 1900
This action was commenced by appellee against appellants by a complaint in one paragraph, being
The special finding of facts, which presents the whole question in this case, is as follows: “That, on the 19th day of February, 1897, the defendants were engaged as partners and dealers in and in the manufacture of coil hoops for the purpose of making coil hoops for barrels; that they conducted their business under the style and the name of the Newcastle Coil Iioop Company. That on said day the plaintiff, JohnW. Durflinger, was engaged in a like business in the town of Noblesville, Indiana, in the name and under the style of the Noblesville Coil Hoop Company. That on said date defendants purchased of the plaintiff, by written correspondence, one carload of 6-9 hoops, to he furnished and delivered to them on board the cars at the city of Chicago, Illinois, to be again sold by them to dealers in that city or elsewhere; that by the terms of said contract said hoops were to be of good quality number one 6-9 hoops, for which the defendants were to pay the plaintiff $5.70-per thousand, delivered free on board the cars at Chicago, Illinois. I further find that thereafter, under and pursuant to said contract of sale, the plaintiff placed in a car at said Noblesville, Indiana, 54,590 number one 6-9 hoops of good quality, and by direction of the defendants consigned said car to H. E. Jennings, one of the defendants, at Chicago, Hlinois; that in due course of time said carload of hoops arrived at the said city of Chicago, and that the freight charges thereon were $32.65, which amount was paid by the defendants. I further find that, after said carload of hoops had arrived at Chicago, the said Harry E. Jennings made an examination of the same, and claimed to discover
‘Newcastle, Indiana, March 15, 1897.
The Noblesville Coil Hoop Company, Noblesville, Indiana. To the Newcastle Coil Hoop Co., Dr.
54,420 Hoops, $4.35.................$236.72 (
Ert. & demurrage........... $39.65'
Commission on car........... 10.00
Telegram.................. .65
Telegram......-........... .50
One, per cent. cash'........... 2.36
March 15th, check bal. acct... . 183.56
$236.72’ $236.72’
Upon the foregoing facts, the court found “that the law is with the plaintiff, and that there is a balance due him, after deducting the amount of said check and freight charges paid by the defendant, of $94.56. I therefore find for the plaintiff, and assess his damages at $94.56.”
The question of whether or not the special finding shows an accord and satisfaction is wholly dependent upon whether or not the facts so found make the claim one for an ascertained sum, a liquidated amount.
Appellants purchased of appellee a certain number of hoops of a certain quality at an agreed price per thousand. The hoops were to be delivered on board cars at Chicago. This meant that freights were to be paid by the consignee, and deducted from the amount due upon the hoops. The facts found show that the number, kind, and quality of hoops ordered by appellants were delivered to appellants by appellee at Chicago. The deduction for freight charges, and computing the amount due for the hoops at the agreed price per thousand, was a mathematical- calculation, from which the same result must invariably follow.
It is the settled rule of law in this State, deducible from the decisions in both courts of appeal, that a simple payment and acceptance of a less sum of money in satisfaction of a greater liquidated sum due, will not be sufficient to sustain a plea of accord and satisfaction. To make the receipt of a part of a debt a discharge of the whole, there must be a
Under the law, as established in this State, we are of the opinion that the conclusions of law upon the facts found are correct. Judgment affirmed.