45 Pa. Super. 524 | Pa. Super. Ct. | 1911
Opinion by
It is agreed in the case stated that on January 22, 1908, the defendants were indebted to the plaintiffs in the sum of $56.00 for freight on an interstate shipment delivered by the latter to the former. There is no dispute whatever as to the amount of this bill and the fact that it was then due and owing. At the same time it appears that defendants had an unsettled claim against the plaintiff arising out of other transactions for alleged shortage on coal and damages to goods shipped amounting to $45.98. This claim was under investigation, but its correctness had not been and is not in the present record conceded.
On the date named the defendants wrote a letter to the plaintiff company enclosing their own bill. Whether it was receipted or not the letter does not show. After complaining of the tardiness of the plaintiff company in adjusting their claim, the defendants’ letter states: “We therefore enclose your freight bill of $56.00, being the freight on P. R. R. Car No. 14,390, and after deducting our bill of $45.98, it leaves a balance due you of $10.02, and we herewith enclose you check for same.” • The check inclosed was in the ordinary form and contained no statement of any terms or conditions attached to its receipt. On February 25,1908, the plaintiff company wrote a letter to the defendants stating that their check referred to was therewith returned and adding “Our bills are payable as rendered, and I would therefore be obliged if you will send us your check for the amount due.” Through some mistake, for which the record offers no explanation, the check was not inclosed. Two days later, on February 27, the defendants acknowledged the receipt of that letter, calling attention to the fact that the check was not inclosed and stating: “We will return it to you if it arrives.”’ This let
In Martin v. Frantz, 127 Pa. 389, Mr. Justice Mitchell said: “It is too well settled to admit of discussion that an agreement to accept a smaller sum in satisfaction of a larger one, presently due, is without consideration and cannot be enforced: Brockley v. Brockley, 122 Pa. 1; and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction: Mechanics’ Bank v. Huston, 11 W. N. C. 389.” It is clear therefore that the retention by the plaintiff of the defendants’ check will not enable the latter to successfully plead an accord and satisfaction of the larger sum admitted to be due.
The defendants do not, however, rely merely on the fact that the plaintiff received and retained their check, but they argue that tlie retention of that check, after their statement in their letter of February 27, “This settlement is final unless you prefer to pay us our claim of $45.98 and then have us pay the freight bill of $56.00,” brings this case within the principle declared in Washington Natural Gas Co. v. Johnson, 123 Pa. 576. In that case there was a dispute between the parties as to the construction of certain covenants in a gas lease. The amount legally due to the lessor was dependent on the proper construction of the instrument. With matters in that state the gas company sent a check to the attorney of the lessors which was expressly stated to be in full for the Johnson lease for a certain year named. A receipt was returned stating that the check had been received for the rental of
The distinction between that case and the one presented by this record seems to us to be evident. The check in the present case contained no memorandum of any kind, indicating that it was to be accepted on any particular' terms. Nor did the defendants’ letter of January 22, in which it was inclosed, make anything like a specific declaration that an acceptance of the check would be regarded as a payment in full of their account, or that unless so accepted it should be returned. That letter merely exhibited a statement of a cross demand of the defendant showing a balance of $10.02 due the plaintiff and declaring that a check was inclosed for the balance due. Had the correspondence ended there, we do not think it could possibly be urged that the retention of the check operated in any way as a bar to a collection of the remainder.
But the plaintiff company’s reply of February 25 repudiated the idea of any intention on its part to accept the check as a payment in full. It is true the check was not returned. Even then, had the defendants in their letter of February 27, declared that they intended their check with the satisfaction of their account, as a payment in full of the plaintiff’s bill, and that if not so accepted by the latter the check should be returned, a different question would arise.
Judgment affirmed.