28 S.E. 349 | N.C. | 1897
The plaintiff had a contract with defendant to grade its roadbed from Star to Ashboro. The plaintiff did the work and defendant paid plaintiff thereon the sum of $7,744.48, leaving an admitted balance still due the plaintiff. But they differed as to this amount, as the plaintiff contended that the estimates were to be made by one rule and the defendant contended they were to be made by another. The plaintiff contended that the work of grading amounted to $12,620.04, and that the amount still due him was the difference between $12,620.04 and $7,744.48; while the defendant contended that the whole work done by the plaintiff did not amount to so much as the plaintiff claimed. The parties finding that they could not agree upon the amount still due, terms of compromise were discussed, and the plaintiff offered to take $3,000 in payment for what was still due. But the defendant declined this proposition, and the plaintiff left without any terms being agreed upon.
After plaintiff had left, the defendant caused the following telegram to be sent to the plaintiff: "J. T. Pruden, Care No. 7, cd. — A. F. Page feels that he has conceded enough in settlement with you, but in order to settle the matter and avoid any further trouble on our part, we hereby agree to your proposition paying you a balance of $3,000 in full for balance due. Answer if satisfactory." (Signed, Page Lumber Company.) To which plaintiff replied by telegram as follows: "Page Lumber Co. — Message received. Send checks to Ashboro." (Signed, J. T. Pruden.) In reply to this, defendant sent the following telegram to J. T. Pruden: "Please say by wire if checks for $3,000 will be received by you as payment in full." (Signed, Page Lumber Company.) On the back of this telegram the following endorsement, admitted to be genuine and made by J. T. Pruden when he answered the telegram "Ans." — "That was what I meant." (Signed) J. T. P. The telegram itself was as follows: "P. L. Co. — Ans. — That was my proposition; send checks and receipt shall follow." (Signed, J. T. Pruden.) Defendant (511) upon the receipt of this last telegram sent plaintiff checks amounting to $3,000, accompanied by the following receipt for the plaintiff to sign and return: "Aberdeen, N.C. 19 Sept., 1896. $3,000. Received of Robert N. Page, treasurer, his check, No. 2340, on Commercial Farmers, Bank, Raleigh, N.C. for $700; check of A. F. Page on Commercial Farmers, Bank, Raleigh, N.C. for $1,000; and R. N. Page, treasurer, check dated 29 September, on the same bank, payable to A. Leazer, superintendent, for $1,300, a total of $3,000, in full payment for grading the Ashboro Montgomery Railroad from Ashboro to Star." To this receipt the plaintiff added the following: "And for all other services rendered by me to said company — said sum being a balance upon a settlement made upon the basis of a final estimate *381 made by the engineer of said company of the entire work done by me on said road, which is as follows — 114,000 cubic yards earth, $880.87 1/2 — 100 cubic yards of solid rock, and for extra work, $80.70. J. T. Pruden.
The plaintiff retained the checks amounting to $3,000, but signed and returned the receipt to the defendant in this altered condition.
The plaintiff proposition to take $3,000 at their first meeting by ways of compromise, was not accepted by defendant, and therefore, failed. Gregory v. Bullock,
There are many other exceptions presented by the record involving the introduction and exclusion of evidence, and also as to the charge of the court, but none of these bear upon or in any way effect the exception we have discussed in this opinion. And as the exception we have discussed is decisive of the case we have not considered the others.
Error.
Cited: S. v. Groves, post, 634; Kerr v. Sanders,
