Potter v. Douglass, 44 Conn. 541

Potter v. Douglass

44 Conn. 541 | Conn. | 1877

Park, C. J.

There is a material difference between receiving money duly tendered, and receiving it when offered in full of an unliquidated claim. In the one case there is no condition attending the tender, and in the other there is a condition, which the party receiving the money must comply with, or he has no right to receive it. In the one case the party receiving the money may sue for more, if more is due *545him, but in the other case, the offer being in full of the claim if the money is received, the law regards it as in full, and the party cannot recover more, even if more is due him'. In the one case it is always safe to receive the money, for no hazard is incurred in doing so, but it is not so in the other case, if the party talcing the money claims a greater amount due him. In the case of Gordon v. Cox, 7 Car. & P., 172, Coleridge, J., in summing up said to the jury, “With respect to the question of tender, I should tell you that a party may do one of two things—he may resist a claim altogether, or tender a less sum; but if he take the latter course he must not encumber his tender with the condition that the other party shall accept the money in full discharge of the debt, because that is putting the person who receives the money under the disadvantage of never being able to claim more, even if he is entitled to a larger sum.” In the case of Sutton v. Hawkins, 8 Car. & P., 259, Alderson, B., held that if a person offers a sum “ as all that is due,” he does not make a good tender. A party by accepting a sum properly tendered does not thereby compromise his future claim to a larger sum, which he would do, if he took a sum offered “ as all that is due.” In the case of Hastings v. Thorley, 8 Car. & P., 573, where a tender was made in these words, “I tender you ¿£21 in payment of the half year’s rent due at Lady-day last,” the court said, “We are of the opinion that this was not a lawful tender, because, if the party had received this money, he would, by receiving it, have admitted that that sum was the amount of a half year’s rent.” There are several cases in Vermont to the same effect.

It appears in this case that the parties were in controversy in regard to the amount due the plaintiff from the defendant, growing out of the removal of a certain building for the defendant. There was no special agreement between the parties in relation to the amount the plaintiff was to receive for his services, and he was therefore entitled to receive what they were reasonably worth. In this state of things there was of course room for disagreement as to what was justly due the plaintiff, and the parties in fact disagreed with regard *546to it. The defendant, after paying the plaintiff something on account, and applying a debt due him from the plaintiff in part satisfaction of his claim, offered the plaintiff the sum of forty-five dollars in full of his account. The plaintiff at first refused to receive the money, on the ground that it was not enough, but after being advised by a person present that it was always safe to receive money on account, received it, intending to apply it on his account, and wrote a receipt to that effect and offered it to the defendant. The defendant refused to receive it because it stated that the money was received on account. The plaintiff however kept the money, and the parties separated.

There seems to be little room for question as to what the law is upon these facts. The money was offered by the defendant in full of the plaintiff’s claim, and there is nothing whatever in the finding tending to show that he consented to its being received on account. Indeed his last act at the interview, as stated in the finding, was a refusal to accept the receipt written by the plaintiff, because it stated that the money was received on account. It would not be claimed that the plaintiff could compel the defendant to accept such a receipt and acquiesce in his keeping the money on account, and it is equally clear that he could not keep the money on account without the defendant’s consent. The plaintiff kept the money, and he kept it when offered in full of his claim. It must therefore be regarded as taken in full, notwithstanding any mental reservation to the contrary, or even express declaration, on the part of the defendant. He did not offer to return the money at the time, nor has he offered to return it since. Doubtless the object which the defendant had in view in making the offer, was to avoid the present controversy. He would rather buy his peace by paying a sum of money that he did not owe, than to defeat the plaintiff at the end of an expensive and irritating lawsuit. At the time the offer was made it was wholly uncertain what the balance of the account would be, inasmuch as the claim of the plaintiff was unliquidated, Doubtless the probabilities were as favorable to the defendant for a balance in his favor as they were *547to tlie plaintiff. But however this may be, the inquiry is, how did the plaintiff receive the money ? He has had it a number of years. Did he receive it on account, in spite of the defendant’s claim that he should take it in full? This will hardly be claimed. But he has appropriated it to his own use, as his own money, and how could this lawfully be done when there are but two ways in which the money could become his—one by receiving it on account with the defendant’s consent, and the other by receiving it in full satisfaction of his claim? It follows, therefore, if the money was not received on account, that it was received upon the condition attending the offer, and the plaintiff is therefore debarred from recovering the remainder of his claim.

There is manifest error in the judgment complained of.

In this opinion the other judges concurred; except Carpenter, J., who dissented.

[The cases of this term will he continued, in the next volume.]