79 A. 992 | N.H. | 1911
It was said when this case was here before (Pike v. Buzzell,
The only evidence tending to rebut the presumption that the plaintiff did not assent to the defendant's proposition which it is necessary to consider is the letter; for the plaintiff testified that the indorsement "in full settlement of account to date," which now appears on the check, was not on it when he received it. In so far as this question is concerned, the letter differs in no material respect from those which accompanied the other remittances; and since the defendant had not treated the using of the check as a final adjustment of the account in any of those cases; no reason appears why the plaintiff should suppose he would contend that it had that effect on this occasion. The check was not sent to adjust a contested claim, but in payment of the amount the defendant conceded he owed the plaintiff. Consequently the use of the check does not estop the plaintiff to insist on the balance of his claim.
No reason has been suggested by the defendant, and none occurs to the court, why the evidence excepted to should have been excluded.
Exceptions overruled.
All concurred. *122