209 Pa. 368 | Pa. | 1904
Opinion bt
Accord and satisfaction and a receipt in full given by appellant to appellee in settlement of a disputed claim for unliquidated damages, it was contended by appellee, were a bar to appellant’s right to recover and were the principal grounds upon which the learned trial judge based his reasons for a compulsory nonsuit.
In the early part of 1894, appellant, who in July, 1894, was in the employment of the appellee, as a superintendent of the Oliphant furnace, met Thomas Lynch, its general manager, and spoke to him in regard to some negotiations for the purchase of certain coal lands on behalf of appellee. These negotiations had been previously begun by it. The general man
The position referred to was a position in the employment of the Union Supply Company, the duties of which were the purchase of cattle. That company was a company distinct from appellee, but of which appellee’s general manager was an official. A day or two after this interview, the occupant of the position referred to died, and Mr. Lynch stated to appellant that he could have it but that he could not get it until certain
The proofs show that he agreed to settle his claim against the appellees for the sum of $500 and the promise of the position indicated by the Union Supply Company, the employment to commence when a vacancy in the position should occur, but that such vacancy was to be dependent upon a settlement of matters growing out of certain mining rights in which the then occupant was interested. It does not appear that the contingency upon which such vacancy was to arise has yet occurred. Appellant accepted the promise and received the $500 in question and having received the same, he receipted in full for services. The accord and satisfaction thereby became complete and the appellant cannot recover upon his original contract.
In Hosler v. Hursh, 151 Pa. 415, Mr. Justice Sterrett says: “ It is no doubt true, as was held in Babcock v. Hawkins, 23 Vermont, 561, cited by the learned president of the common pleas, that where the accord is founded upon a new consideration and is accepted as satisfaction, it operates as such, and bars the remedy on the old contract. There is an obvious distinction between an engagement to accept a promise in sat
In the case referred to, Babcock v. Hawkins, 23 Vermont, 561, it is said : “ The accord is sufficiently executed when all is done, which the party agrees to accept in satisfaction of the pre-existing obligation. 'This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of the former securities, by release or receipt in full, or in any other mode. All that is requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense.”
The receipt in the present case was in full and was a receipt for unliquidated damages upon a disputed claim and as such became final and conclusive because not successfully impeached upon the ground of fraud, accident or mistake. If standing alone unimpeached, it became a bar to appellant’s recovery, it certainly cannot cease to be so operative, because in addition thereto and in connection therewith he accepted from another company, distinct from appellee, a promise of a certain position in that company’s employment. In the case of Flynn v. Hurlock, 194 Pa. 462, it is held:
“ Where a receipt is given ‘ in full of all demands ’ because the debtor refused to pay any more money without it, the creditor must be assumed to have received the money upon the express condition that it was in full of all demands, and he is concluded by it, notwithstanding his assertion at the time, that he ‘waived no rights.’”
In view of the above conclusion it is unnecessary to discuss the question whether the tender of the $500 was a necessary condition to be performed before suit could be brought by appellant.
The assignment of error is not sustained and the judgment is affirmed.