57 Ind. App. 362 | Ind. Ct. App. | 1914
But one question is presented in this appeal, that is, Were there such unliquidated demands or disputed claims existing between appellant and appellees at the time appellant tendered appellees a check in full satisfaction, that their retention of this cheek constituted an accord and satisfaction or compromise of the claim sued on in this action?
“Gentlemen: Yours of the 19th inst. received and in reply permit me to say that the boiler returned to you was in as good, if not even better condition than when I received it first from you. If you made any repairs on the same since its return to you, I had no notice of such necessity, for none really existed. The bad condition of boiler was a cause of serious delay to me in the operation of my gravel and sand plant. I lost quite a bit of money on account of such condition. •But to compromise and settle any and all differences between us, I enclose my check for $25 in full. If you do not desire to accept same in -full settlement of your claim kindly return check to me as it is offered on this condition.”
Perry & Bock retained the check and collected the proceeds, and immediately brought this action against Neubaeher to recover $2.50 as the balance of the rental, and $112.50 for repairs, due under the contract.
Upon trial by the court, the facts were found substantially as above, the conclusion of law made that defendant was indebted to plaintiffs in the sum of $115.05, and judgment rendered accordingly. Defendant appealing assigns error in the court’s conclusion of law, and in the court’s sustaining appellees’ motion for judgment. lie claims that the retention of the cheek by appellees constituted a full satisfaction of all claims between the parties relating to the engine.
tain or liquidated demand. Meyer v. Green (1898), 21 Ind. App. 138, 51 N. E. 942, 69 Am. St. 344, and eases cited; Hodges v. Truax (1898), 19 Ind. App. 651, 653, 49 N. E. 1079; Jennings V. Durflinger (1900), 23 Ind. App. 673, 677, 55 N. E. 979; Milroy v. Kemmerer (1907), 218 Pa. St. 381, 120 Am. St. 888, 11 L. R. A. (N. S.) 1018, and cases cited. But where one party is asserting an unliquidated claim, or a claim which the other party disputes, or where each party is asserting against the other, unliquidated or disputed claims, then the demand of one party may be ¡satisfied by his acceptance in full payment and compromise, of an amount smaller than that claimed by him to be due. Hunt, Accord and Satisfaction §§54-56, 82-87; Jennings v. Durflinger, supra, and cases cited.
The court erred in its conclusion of law upon the facts found, and the judgment is reversed, with directions to restate the conclusions of law to the effect that plaintiffs take nothing by their action, and render judgment accordingly.
Note. — Reported in 103 N. E. 805. As to the law of accord and satisfaction, see 100 Am. St. 390. As to when compromise and settlement are enforceable on payment of part of a demand, see 100 Am. St. 412, 429. For a discussion of part payment as satisfaction of a disputed claim, see 1 Ann. Cas. 801; 16 Ann. Cas. 194. On the question of acceptance of remittance of part of the amount of an unliquidated or disputed claim, accompanied with the statement that it is “in full,” or words of similar import, as assent to its receipt in full payment, see 14 L. R. A. (N. S.) 443; 27 D. R. A. (N. S.) 439. See, also, under (1) 1 Cyc. 331; Accord and Satisfaction 1 C. J. 85; (2, 4) 1 Cyc. 829; Accord and satisfaction §71; (3) 1 Cyc. 319; Accord and satisfaction 1 C. J. §40; (5) 1 Cyc. 329; Accord and satisfaction 1 C. J. §65.