83 Ill. App. 543 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The question is, was there an accord and satisfaction, as a conclusion of law, from the facts in evidence ?
“To constitute an accord and satisfaction (of a claim, unliquidated and in dispute)', it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and that such party to whom it is offered is bound to understand therefrom that if he takes it, he takes it subject to such condition. When a tender or offer is thus made, the -party to whom it is made has no alternative but to refuse it, or accept it upon such condition. If he takes it, his claim is canceled, and no protest, declaration or denial of his, so long as the condition is insisted on, can vary the result.” Preston v. Grant, 34 Vt. 201.
The Court of Appeals of New York (Fuller v. Kemp, 138 N. Y. 231), adopting the language, as above, from Preston v. Grant, adds:
“ To make out the defense the proof must be clear and unequivocal that the observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered, in case he did not assent to the condition upon which it was offered.”
The party seeking to settle for a less sum than is claimed to be due, must, by his words and conduct when making the offer, clearly inform the other of what is sought and expected. The transaction must be such as that the. condition is as plain as the tender, so that the acceptance of the tender will involve the acceptance of the condition. In other words, the tender and the condition must be incapable of severance, for the law will not otherwise draw the inference that the acceptance of the tender involves the acceptance of the condition.
The case of Ostrander v. Scott, 161 Ill. 339, relied upon by appellants, in no manner opposes the rules we have stated, but is in effect in support of them, for it rests upon what it finds, from the facts there existing, was necessarily the understanding and agreement of the parties.
The question in that case, as in this one, goes to the effect to be given to the words and acts of the party in connection with the check. There the check had written upon its face, “ in full of all demands to date.” Here the check contained no words limiting its effect. There the letter enclosing the check stated that it was“ in full of account to date.” Here the letter enclosing the check says it is “ in payment of bills” of specified dates, “ less $100 on 10,000 yards at one cent.” There was also in the Ostrander case an element wholly lacking here. There, as soon as the debtors were informed that the check was not accepted by the creditors in full payment, but only as a credit on account, the debtors wrote that the check was sent in full settlement, and - demanded it be returned if not so accepted. Here appellants made no reply to appellees’ letter declining to assent to the deduction, but did afterward offer to pay $70 of the $100 that had been deducted.
It would require us to unwarrantably extend the Ostrander ease to hold that this case is parallel to that one. The present case is much more like that of Lapp et al. v. Smith, 83 111. App. 203, where numerous authorities are reviewed. The case of Hamilton v. Stewart, 31 S. E. Eep. (Ga.) 184, is cited by appellants, but that, like the Ostrander case, turns upon the payment being made upon the condition of its acceptance in fulL We are unable to hold that even though this case stood without any question of waiver by appellants, we could reverse the judgment. The learned circuit judge before whom the case was tried, held certain propositions of law which were most favorable to appellants’ contention, but held properly, as a modification of one of them, that the debtor might waive his right to have the payment made by him applied in satisfaction, and that the evidence, shows in this case there was such a waiver. We fully concur there was such a waiver. The testimony clearly shows what amounts to a waiver by the appellants of any rights they claimed, to have the check applied in full payment. That testimony, even though incompetent in so far as it showed an offer of compromise, was clearly competent to show there was no condition attached to the acceptance of the check, or if there were, that the condition was waived.
The judgment of the Circuit Court is affirmed.
