122 Neb. 216 | Neb. | 1932
This is an action in forcible detention. The plaintiff is the owner of a farm in Frontier county and the defendant is in possession thereof under a lease. At the conclusion of the trial in the lower court, both parties made motions for a directed verdict and for judgment, whereupon the trial court took the case from the jury and rendered judgment in favor of the defendant and dismissed plaintiff’s cause of action. From this finding the plaintiff has brought the case to this court for review.
It appears from the record that the plaintiff at the time of the commencement of the action was the owner of a half section of land in Frontier county, Nebraska; that the defendant during the crop year of 1929 had occupied the premises as tenant of the plaintiff. Hereafter, for convenience, the parties will be designated as landlord and tenant. That on the 30th day of September, 1929, the landlord, entered into another lease with the tenant for the crop year of 1930; that the tenant was in arrears of rent for the crop year of 1929; that on or about the 18th day of February, 1930, the parties met at the office of the clerk of the district court in Stockville for the purpose of making some sort of settlement of their differences. Upon that date they entered into a written contract wherein it was recited that the tenant was indebted to the landlord for money advanced in the amount of $163.42, and pasture rent of $55, being- a total of $218.42, and upon this amount of indebtedness the tenant was entitled to a credit of $39 for fence posts which he claimed he had paid for for the landlord. Whereupon the parties agreed in substance that, in event the tenant did not pay to the landlord the above mentioned items, the tenant would forfeit the lease and deliver up peaceable possession of the premises to the landlord, upon condition that each party should appoint one appraiser and the two choose a third to appraise the number of acres of wheat already planted on the premises
The testimony of the tenant is that, after the check had been delivered to him, he discovered that he had only received pay for two-thirds of the wheat, and that he should have received pay for all, and that he was dissatisfied with the transaction. By his own testimony he states that he made no effort to deliver back the check after he had expressed himself as being dissatisfied, but retained the same and cashed it and has never returned any of the funds to the landlord since that time. There seems to be very little dispute in the testimony of the parties. The appraisers made no effort to fix the value of the tenant’s interest in the wheat, but merely found it to be of the value of $5 an acre.
It seems to us that the law governing transactions of this character is so well settled it hardly admits of an argument.
“Where there is a bona fide dispute between parties as to the amount due upon an account, and the debtor tenders a less amount than the claim in full settlement, which the creditor accepts, * * * the dispute will be a sufficient consideration to uphold the settlement.” Partridge Lumber Co. v. Phelps-Burruss Lumber & Coal Co., 91 Neb. 396.
“Where a certain sum of money is tendered by a debtor to a creditor on the condition that he accept it in full satisfaction of his demands, the sum due being in dispute, the creditor must either refuse the tender or accept it. * * * If he accepts it, he accepts the condition also, notwithstand
One accepting a check knowing it is offered in full settlement of an account is estopped to .claim that deductions in the account were improperly made. Thomas v. Columbia Phonograph Co., 144 Wis. 470; Nassoiy v. Tomlinson, 148 N. Y. 326.
The tenant raised no objection to the settlement at the time of the delivery of the check, and even had he done so, and the check was tendered to him, as it was, in full satisfaction of the sum in dispute, the duty was then cast upon the tenant to refuse the same, and if he did not'do so he will be held in law as having accepted settlement, notwithstanding any protest he might make.
“A compromise * * * whereby a less sum than that claimed has been paid and accepted in full of plaintiff’s claim, bars the right of plaintiff to insist upon a recovery of the amount originally claimed.” Slade v. Swedeburg Elevator Co., 39 Neb. 600.
“Where there is a bona fide dispute between parties as to the amount due upon an account, and the debtor tenders a less amount than the claim in full settlement, which the creditor accepts, with knowledge that it was tendered as a full settlement, the dispute will be a sufficient consideration to uphold the settlement, and will bar a recovery upon the remainder of the claim.” Chicago, R. I. & P. R. Co. v. Buckstaff, 65 Neb. 334.
The landlord herein paid to the tenant the amount of the appraisers’ award, which was accepted by him, and after acceptance thereof the tenant refused to comply with his agreement to deliver up possession of the premises, claiming that he only received the value of two-thirds of the wheat, when he should have received the value of all of it. Even if this were true, his position would be untenable. If a mistake were made in the amount due him for the 'wheat by the appraisers or any other party concerned, still he could not be heard to claim a right to the possession of the premises simply because there was more due him
Under the facts, which are almost. entirely undisputed, we hold that the trial court erred in rendering judgment for appellee instead of appellant. :
For reasons heretofore stated, the judgment is reversed and the cause is remanded.
Reversed.