O'Brien v. American Agricultural Chemical Co.

229 F. 387 | 2d Cir. | 1916

LACOMBE, Circuit Judge.

Judge Mack disposed of the cause'by dismissal, because he was satisfied from the proof, as" it stood when plaintiff rested, that an accord and satisfaction was established. That is the only question which need be considered. On February 13, 1913, plaintiff was notified that his discharge had been ordered. He continued his work the balance of that day and also the next day. On February 15th, being ill and confined to the house, he phoned to the defendant to send him, as was customary, his salary for the first half of February. In response there was sent to him a receipt, with the request that he sign it, which stated the amount due for his salarand expenses from February 1st to 15th at $151.67, and also as “one month’s additional salary $183.33.” Both these items were accurately stated. There was inclosed with tire receipt an acquittance for $50, which allowed him to keep a sum of $50, which he had theretofore received as cash advanced on account of expenses. There was also inclosed a .check for $285, being the balance of $335 remaining after crediting the $50. This check he had certified, which was equivalent to accepting it. Undoubtedly he understood that defendant was offering to pay him one month’s full pay, in addition to what was then due him, in settlement of all controversy over his discharge. He testified that he understood that the defendant had in mind that this was to be a final payment, or as he elsewhere expressed it that they “were willing to give [him] one hundred and eighty odd dollars as' a sop to be satisfied with and get out.”

The contention here made is that the amount due him for an unwarranted discharge — and for the purposes of this appeal it may be assumed that the discharge was unwarranted — was a liquidated amount, to wit, a year’s salary, with $4 per diem for expenses. It is argued that, in cases where there is no dispute as to the amount due, the acceptance of a less sum will not in itself establish an accord and satisfaction. The authorities cited are not applicable. The salary from February 1st to 15th was, of course, a liquidated amount; hut the sum which defendant should pay plaintiff as damages for an improper discharge was by no means liquidated. The damages would he one year’s salary and per diems, less such sum as plaintiff might have received from other employment obtained during the year, or, assuming the cause came to trial promptly after dismissal, less such compensation as from the evidence, the jury might be satisfied that plaintiff would receive by proper effort in seeking other employment.

The judgment is affirmed.