150 N.E. 254 | Ill. | 1925
Lead Opinion
Defendant in error, Verner Kall, began an action of assumpsit in the circuit court of Rock Island county against plaintiff in error, the W.G. Block Company, for wages alleged to be due him. The declaration consisted of the common counts. Plaintiff in error filed the general issue, together with an affidavit of defense which alleged that defendant in error had been paid in full and that there had been an accord and satisfaction. A jury trial was had. The court refused to instruct the jury to find the issues for the company and the trial resulted in a verdict for defendant *340 in error for $1253.50, and judgment was entered upon the verdict, from which judgment an appeal was prosecuted to the Appellate Court for the Second District, where the judgment of the circuit court was affirmed. To review the judgment of the Appellate Court a writ of certiorari has been granted by this court.
Plaintiff in error was engaged in the retail coal business, having several offices, one of which was in Moline, in charge of H.B. Zefferin as manager. The head office was in Muscatine, Iowa. Defendant in error was employed by plaintiff in error as a yard foreman, at an average wage of about $30 per week. He testified that on May 1, 1919, he had a conversation with Zefferin in which Zefferin told him that if he would continue in its employment plaintiff in error would pay him fifty cents per hour; that he would be paid during the year at the rate of $30 per week, and the difference between the $30 per week and the amount which he should receive at the rate of fifty cents per hour would be paid to him at the end of each year. This conversation was denied by Zefferin. Defendant in error testified that plaintiff in error owed him, by reason of such contract, $1523.50 over and above the regular wages which had been paid him during the period of his employment. Defendant in error continued in the employment of plaintiff in error from May 1, 1919, until March 7, 1923, when he was discharged. After his discharge he wrote a letter to plaintiff in error at Muscatine making a demand for $1523.50, being the difference between what he was paid and what he claimed he had earned. Fred Block went to Moline and had a talk with defendant in error and Zefferin. Block asked defendant in error what this letter meant, and defendant in error said that he had about $1500 coming for back wages. Zefferin said defendant in error had only the fractional part of a week's payment coming to him, amounting to about $10, and he denied that he had ever had a conversation with defendant in error with reference to fifty *341 cents per hour. Block told Zefferin to give defendant in error a check in full. Zefferin wrote a check for $10.80 and made out a receipt, which was signed by defendant in error in the presence of Block, Zefferin and two other witnesses. The check was endorsed by defendant in error and cashed and contained the words, "Labor to date in full." The receipt given by defendant in error contained the words, "Salary for labor to date."
The above facts are undisputed, the only dispute in the evidence being as to the amount due defendant in error from plaintiff in error for "labor to date." The particular contention of plaintiff in error is, that the receipt by defendant in error of the check, his cashing the same and his signing the receipt constitute an accord and satisfaction and are a bar to this suit.
Where there is a bona fide dispute between a debtor and a creditor as to how much is due, a payment of the amount claimed by the debtor to be due in full settlement, if accepted by the creditor, is a satisfaction of the claim. (Snow v. Griesheimer,
The judgments of the Appellate Court for the Second District and of the circuit court are reversed and the cause remanded to the circuit court.
Reversed and remanded.
Dissenting Opinion
Within its expressed limitations there is no question of the soundness and propriety of the rule that where a person owing an unliquidated and undetermined claim tenders a stated sum to be accepted as full payment and the claimant accepts such tender both parties are bound by the settlement. (In re Estateof Cunningham, supra.) But where the creditor has two claims against the same person, one undisputed and the other disputed, the acceptance of the payment of the undisputed claim cannot be held to be a settlement of both claims. The payment of the admitted claim furnishes no consideration for the accord, and there being no accord there cannot be a satisfaction. (Barr v.Clinton Bridge Works,