282 P. 852 | Mont. | 1929
"The phrase `accord and satisfaction' as generally known and applied in the law and under the definitions of our statute means the substitution of a new agreement in satisfaction of an obligation, different from the original rights existing under an antecedent liability." (Nelson v. Young,
Even a liquidated claim may be the subject of an accord and satisfaction. The common-law rule was that a liquidated claim could not be the subject of an accord and satisfaction; that is, it could not be settled for less than the amount due. By liquidated claim is meant one that is not in dispute. This rule is losing favor and is applied with strict construction; in fact, in a great many states, including Montana, the rule has been somewhat modified by statute, so that a claim may now be released in writing for less than the full amount due. (1 C.J. 542, sec. 43.)
This court in State ex rel. Bishop v. Keating,
The offset made the claim unliquidated. An unliquidated claim means a disputed claim, one about which there is some controversy (1 C.J. 555, secs. 76, 77), and where a debtor claims an offset, this makes the creditor's claim an unliquidated claim. In other words, the amount due is in dispute and the creditor's claim becomes unliquidated. (1 C.J. 556, sec. 78; 4 A.L.R. 474; 53 A.L.R. 768; Hotel Randolph Co. v. John C. Watrous Co.,
The acceptance of the check amounted to an accord and satisfaction. (1 C.J. 558, sec. 81; Id., 562, sec. 85; 1 R.C.L. 196, sec. 32; Id., secs. 191, 194-196; 34 A.L.R. 1036, 1044;Canton Union Coal Co. v. Parlin Orendorff Co.,
By reply plaintiff admitted that he entered into a contract with the Nesses to manufacture railroad ties and deliver the same to defendant at an agreed price of forty cents per tie and agreed to furnish to the Nesses supplies for operating their camp, the purchase price of the supplies to be deducted from any money due or to become due, but it was specifically and expressly understood between plaintiff and the Nesses that all goods and supplies were to be sold by plaintiff from his store in Kalispell and not otherwise. All other of the affirmative allegations of the answer were denied.
The case was tried before the court with a jury; at the close of the testimony both parties moved for a directed verdict, and the jury was discharged by agreement of counsel. Thereafter, and when the cause was argued to the court, defendant asked leave to amend its answer by setting forth with greater particularity its plea of accord and satisfaction. The court denied the right to amend, and judgment was entered for plaintiff, from which defendant appeals.
Defendant first contends that the court erred in denying its motion to amend its answer.
Under the provisions of section 9187, Revised Codes 1921, the court may, at any time, in furtherance of justice and on such terms as may be proper, allow any pleading to be amended. *175
The matter of an amendment of a pleading, at any time, rests within the sound discretion of the trial court, and its action, in the absence of an affirmative showing of abuse of that discretion resulting in prejudice, will not be reversed. (Apple
v. Seaver,
The remaining assignments of error present the question of the sufficiency of the evidence to support the judgment. Counsel for defendant insist that the uncontradicted evidence shows an accord and satisfaction of the claim sued upon, which constitutes a complete bar to plaintiff's recovery.
It appears from the evidence that during the time in question defendant was acting as the agent of the Great Northern Railway Company in the purchase of railroad ties; that *176 plaintiff and the Nesses entered into the contract described in defendant's answer for the manufacture of ties; that defendant sold and delivered to the Nesses supplies which were used at the tie camp of the value of $471.54; that during the month of January, 1927, plaintiff delivered to defendant the number of ties and of the value alleged in the complaint. Early in April, 1927, plaintiff requested a settlement for the ties delivered during the month of January. Defendant tendered to plaintiff a voucher check in the sum of $363.54, upon which was printed "In settlement of the above account." The voucher recited: "For ties put in during January, 1927, per Statement attached $835.03. Store bill $471.49" — leaving a balance of $363.54, the amount of the check. Plaintiff protested the deduction of the store bill and at first refused to accept the check, but later accepted it. He testified regarding the circumstances of acceptance as follows: "I told Mr. Gautier, I didn't owe that bill or any part of it. I had never authorized Mr. Ness to run anything on my account, never had told the Somers Lumber Company to let him have anything and I would be responsible for it. He said he had no authority to do anything but to deliver the check. We continued to talk for some little time and I said for him to give me what he could and let the bill stand and this check was brought out after this conversation. I again objected to it and asked him if I couldn't let the matter of the bill of Ness', which they had deducted from money due me, stand and settle it at some future time. He said he didn't care what I did, or words to that effect. Now, we had quite a little conversation then and that is all I recall of it. They didn't require me to sign anything." The check was indorsed by plaintiff and cashed. Gautier, a witness called by defendant testified to substantially the same facts.
It should be noted that under the contract of employment between plaintiff and the Nesses plaintiff agreed to furnish certain supplies but it is clear that the parties contemplated that these supplies were to be furnished from plaintiff's store at Kalispell, and the purchase price therefor deducted from any *177 moneys due or to become due the Nesses under the contract. Under no possible construction of the contract were the Nesses authorized to purchase these supplies elsewhere than at plaintiff's store upon his credit and he cannot be held liable for their debt. The offset if allowable on any theory must rest upon the conclusion that the act of plaintiff in accepting and cashing the check under the circumstances constituted an accord and satisfaction. It is upon this theory that defendant contends the offset should be allowed.
An accord and satisfaction is founded upon contract, and a consideration therefor is necessary. By the great weight of authority, if the indebtedness is unliquidated or in dispute, payment by the debtor of an amount less than claimed by the creditor, and the receipt by the latter of such amount under such circumstances that he is bound to know that the intention was to make the payment in full settlement of the claim, will discharge the whole claim, and the creditor may not thereafter maintain an action to collect additional sums. Under these circumstances there is an agreement to compromise the differences between the parties, and, there being a dispute, a consideration for the agreement exists. (1 R.C.L. 194; 1 Supp. R.C.L. 60; 1 C.J. 551;In re Miller's Estate,
If plaintiff's claim was unliquidated, his acceptance of the check under the circumstances disclosed by the record constituted an accord and satisfaction. If the claim was liquidated, it could be discharged only by payment in full or by payment of a lesser amount and acceptance thereof in writing. (State ex rel. Bishop
v. Keating,
"A claim is liquidated when the amount due is fixed by law or has been ascertained and agreed upon by the parties." (State exrel. Bishop v. Keating, supra; 5 Words and Phrases, p. 4174; 3 Words and Phrases, Second Series, p. 148; Treat v. Price,
By the great weight of authority a liquidated debt, admitted to be due, is rendered unliquidated by the assertion of a counterclaim or set-off by the debtor, so that it may be discharged by the payment of a smaller amount. (1 C.J. 556; 1 R.C.L. 198; notes, 4 A.L.R. 474; 53 A.L.R. 768.) An agreement of accord and satisfaction for the payment of a smaller sum than that required under the original agreement presupposes a prior controversy or dispute concerning the relative rights of the parties under the original agreement. (1 Cal. Jur. 131.) Such dispute must be an honest one and based on some reasonably tenable ground, though it need not in fact be well founded. It must appear that it did not arise merely from an arbitrary denial of an obligation obviously due. (1 R.C.L. 198; 1 Cal. Jur. 131;Fire Assn. v. Wickham,
Upon the issue of an executed accord and satisfaction the trial court was required to consider the question of whether or not there was in fact at the time of the acceptance and retention of the check by plaintiff a bona fide dispute between the parties concerning the sum due plaintiff, thus rendering the claim unliquidated. This was primarily a question of fact to be determined by that court from all the circumstances of the entire transaction. (Berger v. Lane,
The court was not requested to, and did not, make any findings of fact or conclusions of law, and consequently we are not advised of the theory upon which the judgment was based. In the absence of express findings, every finding necessary to support the judgment of the court will be implied. (Town of Cascade v.Cascade County,
This is an action at law and the rule is settled in this state that in such a case when the evidence is conflicting this court will not pass upon the weight or preponderance of the evidence, but we are obliged to accept the findings, be they express or implied, if there is any substantial evidence to support them. (Matthis v. Campbell,
After a most careful consideration of the record, we think there is substantial evidence to support the implied finding of the learned trial judge that there was not a bona fide dispute between the parties as to the amount due plaintiff at the time the check in question was accepted by him. It follows that the acceptance by plaintiff of a lesser amount than due did not operate as an accord and satisfaction so as to discharge the claim sued upon.
For the foregoing reasons the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and ANGSTMAN concur.