145 Mo. 651 | Mo. | 1898
This cause is here upon appeal from a judgment in favor of defendant on a demurrer to plaintiff’s reply.
Plaintiff was one of the street sprinkling contractors for the year 1893. It procured five contracts for
Payments were made to plaintiff from time to time until the close of the sprinkling season. At that time the street commissioner made out estimates of the total amount of work done under each of the said .contracts, and, after deducting therefrom payments theretofore made on account, and in each instance a certain sum for repairs to fire and water plugs, forwarded said estimates and statement to the president of the board of public improvements, who approved the same and forwarded them to the city auditor, who in turn allowed the same. Thereafter, on December 22, 1893, plaintiff received and accepted from said auditor warrants upon the city treasurer for the amounts thus allowed, which. warrants he presented for payment, and on December-23, 1893, received the amounts called-for in each, and in each instance signed a receipt in full payment and
All of the foregoing matters appear in the petition and answer in the ease.
Plaintiff thereupon filed a reply to the ansVer in which plaintiff substantially admits all of the foregoing .facts, but denies that the amounts charged against it for repairs to fire and sprinkling plugs were properly charged, because plaintiff avers that no damage or injury was done to them by any of its employees, and that whatever repairs were made were in consequence of the usual and ordinary wear and tear of the plugs or for injuries inflicted by parties other than plaintiff.
The reply admits that plaintiff received the amounts tendered by defendant, and that plaintiff executed receipts in full, as averred in the answer, but set forth that on receiving saidseveral amounts, and on signing and delivering said several receipts, plaintiff protested against the deductions, denying liability therefor, and asserting in the protest that it signed said receipts only because they were “forced” on plaintiff by the city, and because plaintiff “could not help itself, and needed said money.”
To this reply defendant demurred generally, on the ground that the same did not contain matter sufficient to overcome the effect of plaintiff’s act in receiving the money tendered it, with the condition annexed thereto that the same was in full discharge of all of plaintiff’s claims, or to overcome the effect of plaintiff’s releases.
The demurrer was sustained and judgment thereupon entered in favor of defendant upon the pleadings, from which judgment plaintiff has appealed.
Plaintiff’s contention is that it is entitled to recover in this action the amounts withheld for repairs to plugs, • notwithstanding the foregoing facts, on the
On the contrary, defendant claims that in December, 1893, a controversy did arise, and exist, between the parties as to the proper meaning of their contracts, and as to the amounts due and payable thereunder, and that the tenders to plaintiff'having been conditional and plaintiff having accepted the same, and having executed the releases referred to in the answer, plaintiff should not now be permitted to maintain suit to recover the alleged balance.
I. It is well settled law that the payment of apart of a debt, or of liquidated damages, is not a satisfaction of the whole debt even when the creditor receives the part for the whole, and receipts for the whole demand. Riley v. Kershaw, 52 Mo. 224; Willis v. Gammill, 67 Mo. 730; Tucker v. Bartle, 85 Mo. 114. But this doctrine has no application in cases of fair and well understood compromises of unliquidated or disputed demands faithfully carried out, nor in those cases in which a new consideration enters into the stipulations for the release of the whole debt by paying a portion only, as for instance if a part be paid before the whole is due or could be demanded, or if the payment of a part be more beneficial in any way to the creditor than that prescribed by the contract. Riley v. Kershaw, 52 Mo. 224; Tanner v. Merrill, 108 Mich. 58; Ostrander v. Scott, 161 Ill. 339. Defendant readily* concedes the foregoing propositions, but insists that this case is not affected by them.
The learned city counselor maintains that a controversy arose out of the contracts of plaintiff with the
The assumption of plaintiff that there was not and could not be a disputed claim because the amount of plaintiff’s claim was fixed by contract is not tenable. The amount due the plaintiff was as much in dispute by virtue of the claim made by the city for repairs to the fire and water plugs as if the plaintiff had failed in some essential of its contract. Its claim can not be held as liquidated when the balance due it was fairly in dispute as to the amount of set-off the city claimed.
While we should consider it evident upon sound principles that the claim of plaintiff was unliquidated by reason of the claim of the set-off, we are also fortified by eminent authority in so ruling. Thus, in Ostrander v. Scott, 161 Ill. 345, it was said: 1£It is claimed that the account of the plaintiff was liquidated because its items were not disputed. But if there was a controversy over a set-off and the balance due the plaintiff was fairly in dispute, the claim could not be treated as liquidated.” In Tanner v. Merrill, 108 Mich. 61 the Supreme Court of Michigan, in a matter very similar to the same case at bar, said: ££IJpon the
We are then brought to consider the effect of plaintiff’s action in receipting the city in full payment for its work and releasing it from all claims and demands-whatsoever that might arise out of said contracts.
It is not charged that any fraud was perpetrated in obtaining plaintiff’s signature to said receipts. With a full knowledge of all the facts, and after the respective claims of each party had been fully discussed, the defendant tendered the several amounts on each of said contracts in full payment and satisfaction of plaintiff’s claims and plaintiff so accepted them and released defendant. This court in Adams v. Helm, 55 Mo. 471 held that when a tender was made in settlement of a disputed claim it was the duty of the party to whom it was made “either to refuse it or accept it on the terms as made.” That “she had no right to accept the tender and prescribe the terms of her acceptance. ” In Perkins v. Headley, 49 Mo. App. 562, the St. Louis Court of Appeals said: “But if there is a controversy between the creditor and his debtor as to the amount which is due and if the debtor tenders the amount which he claims to be due, but tenders it on the condition that the creditor accept it in discharge of his whole demand and the creditor does accept it, that will be an accord and satisfaction as a conclusion of law, the principle being that one who accepts a conditional
But plaintiff seeks to parry the effect of the foregoing rule by the fact that although it received the amounts tendered and receipted in full for all claims growing out of said contracts, it filed a written protest at the time of so doing, notifying the city it would insist upon the balance claimed. What effect in law is to be ascribed to these protests under these circumstances? We think the law is settled that where as in this case a debtor tenders a certain sum in full satisfaction of an unliquidated demand and the creditor accepts and retains the money, his claim is satisfied and no protest on his part will destroy the effect of his acceptance of the tender. Fuller v. Kemp, 138 N. Y. 231; McDaniels v. Lapham, 21 Vt. 222; McGlynn v. Billings, 16 Vt. 329; McDaniels v. Bank, 29 Vt. 230; Bull v. Bull, 43 Conn. 455; Potter v. Douglass, 44 Conn. 541.
Our conclusion is that the circuit court correctly sustained the demurrer to the reply and the judgment is accordingly affirmed.