24 Fla. 181 | Fla. | 1888
delivered the opinion of the court:
This is an action of assumpsit, instituted by the plaintiff to recover of the defendant a reasonable compensation for services as agent of defendant in making a contract for defendant for the purchase of land from the Internal Improvement Board of the State of Florida. There was no special contract as to the compensation plaintiff was to receive. The amount of compensation was an unliquidated demand. It was tried by a jury, with pleas of payment and accord and satisfaction interposed by the defendant. We do not propose to consider all of the exceptions taken by defendant at the trial or to consider all of the errors assigned by the appellant.
The second error assigned is that the court erred in giving the charges asked by the plaintiff’s counsel, numbered from one to six inclusive. The first of these charges asked and given was: “ That under the pleadings in the case the issue is one of payment and accord and satisfaction, and that the jury cannot take into consideration any question involving issues not pertinent to that presented by the pleadings.” This charge is too restricted in its character. It assumed that the only issues presented in the case were that of payment and that of accord and satisfaction, and was well calculated to mislead the jury. While the plea of the general issue lnrd been struck put by order of the court, no judgment by default had been entered upon the -several counts in the plaintiff’s declaration. The effect of the pleadings, as they stood npon the trial then being had, was to admit the contract of employment, as alleged by the plaintiff in his declaration,'by the defendant and for the purposes so
This charge, in the opinion of this court, withdrew from the jury, or had a tendency to withdraw from the jury, the evidence before them, both on the part of the plaintiff and defendant, bearing upon the measure of the value of plaintiff’s services to the defendant under the contract, as alleged in plaintiff’s declaration. It was the province of the jury, in making up their verdict, to consider all of the evidence before them, pro and con, as to the value of plaintiff’s services to the defendant. The second instruction asked by the plaintiff and granted by the court is amenable to the same objection as that of the first. Tlte third, fourth, fifth and sixth instructions asked by the plaintiff and given by the court will be considered together, as they all bear upon the same subject matter; the plea ot accord and satisfaction, as pleaded by the defendant, and in order to determine whether the charges as given by the court were proper or improper, it is necessary to examine the evidence, as elicited before the jury, both for the plaintiff and the defendant. -
Every plea of accord and satisfaction must be supported by a contract expressed or implied to be effective.
We do not-for a moment consider this case as resting upon the doctrine established in-the English case of Cumber vs. Wane, or as.falling under the many qualifications of the doctrine of that case that have been made both in England
The broad distinction of ibis case now before this court from Cumber vs. Wane is that no amount had been fixed, but the claim of the plaintiff stood as an unliquidated claim or demand to be ascertained by evidence, and that could only be arrived at by evidence and not by mathematical calculation. That $2,000 was paid by the defendant to plaintiff before suit is not denied by the plaintiff. The evidence bearing upon the payment of the $2,000 by defendant to plaintiff is mostly in. writing, either by letter or by telegram, and their contents are not denied or questioned by either party to the transaction, but the disagreement grows out of the construction to be put upon tiie letters and telegrams that passed between the persons who were engaged in the negotiation of the settlement of the plaintiff’s claim or demand against the defendant. Mr. Greenleaf, in his excellent Treatise on Evidence, vol. 2, m. p. 28, top page 25, says, “ the facts in respect to the arrangement or accord between the parties being ascertained their effect is purely a question of law for the court and is not to be submitted to the jury.” Applying this law to the charges of the court,, we think the court erred in all of the charges asked by plaintiff and given by the court upon this subject.
The importance of this case to both parties requires that this court should pass upon the written evidence in this case-bearing upon the negotiation for a settlement of the controversy or claim of plaintiff against defendant. This case is-
The negotiation for a settlement was carried on in the utmost frankness by both parties, the plaintiff proposing a settlement on the basis of $2,000, receipt of a lumber account and balance due on lot, the whole amounting to, as appears from the evidence, $2,600, or $2,700. To this proposition the plaintiff is informed “ that Sanford agrees to $2,000.” Called for amount of lot and lumber bill. lie is further informed that Sanford has been answered, but have had no reply, and in the form of an interrogatory the plaintiff is asked: “ How late can we have t'o wait answer ?” To this the plaintiff replies: “ Deposit $2,000 with Ambler by Friday and all right.” On April 19th, 1882, he writes Messrs. Fleming & Daniel that when he wrote them from Orlando on Monday he was not aware that the Sanford matter had been “ settled.” What did plaintiff mean when he said deposit two thousand dollars in Ambler’s bank, “ and all right ?” Did lie mean that he considered the payment of the $2,000 offered by Sanford as a settlement of
Mr. Greenleaf, in his work on Evidence, 2d vol., p. 537, says: “ If the claim be not liquidated, but open to a dispute, a receipt in full could be pleaded as an accord and satisfaction, on the ground that a fair compromise and settlement of the claim should be upheld,” and refers by note to a number of English and American cases to support this position. We have been unable to verify the cases referred to, except a few of them, which we think support the text. In the case of Stockton vs. Frye, 4 Gill, 408, it is laid down that a party aggrieved may determine the sufficiency or insufficiency of the satisfaction made and accepted by him, and in actions for general and unliquidated 'damages the payment and acceptance of a sum of money as a satisfaction, is a good bar. The case of Palmerton vs. Huxford, 4 Denio, 166, is to the same effect. The case of McDaniel vs. Lapham, 21 Vermont, 222, we think is very much in point. It is there determined that when a party makes an offer of a certain sum to settle aclaim, when the sum in controversy is open and unliquidated, and attaches to his offer the condition that the same, if taken at all, must be received in full, or in satisfaction of the claim in dispute, and the other
The court should, upon the evidence before it, have determined whether what passed between the parties was an accord and satisfaction, and not, by the charges given, have submitted to the jury as a fact tobe found from the evidence whether there was an accord and satisfaction. There being no dispute as to the facts before the court on this subject, it was a question of law for the court to determine, and not of fact for the jury, and for these reasons there was error in the charges asked and given by the court.
And for the same reason the court should have granted a new trial.
"We do not consider it necessary to determine the other errors assigned growing out of the pleadings.
Judgment reversed and new trial granted.