St. Louis, Ft. Scott & Wichita Railroad v. Davis, 35 Kan. 464

St. Louis, Ft. Scott & Wichita Railroad v. Davis

35 Kan. 464 | Kan. | 1886

The opinion of the court was delivered by

Johnston, J.:

The evidence giveu on the trial, construed favorably to the plaintiff belowyis sufficient to sustain the findings of the court, and we must therefore take the facts as they have been found. There is no dispute but that the services sued for were rendered by the plaintiff, and were worth the sums which he charged therefor. It is insisted by the railroad company that there has been an accord and satisfaction of his claim. Since the services were rendered by the plaintiff he has signed a receipt acknowledging the payment of $200, and it recites that it is in full for all services rendered to the company, including those for which this action was brought. Davis claims that the $200 was due and paid for other services rendered at an earlier time, in what is termed the “right-of-way eases,” and also that at the time of receiving the payment and signing the receipt, he protested both verbally and in writing, that it was not a complete satisfaction, and that he still claimed compensation for the services in the “’Whittaker cases,” which are those involved in this action. On the other hand, it is claimed by the railroad company that Davis had, before that time, acknowledged payment in full for the services which he had rendered for the company in the right-of-way cases, and therefore that the $200 was a payment on and in full satisfaction of his claim for services in the “Whittaker cases.”

It seems that prior to his employment in the “Whittaker eases,” he was employed by J. D. Hill, superintendent of the *468railroad company, to attend to the “right-of-way cases,” at an agreed compensation of $1,200. The plaintiff was first paid the sum of $100 under that contract, and at another time $500 was paid thereon. Some time after the payment of the $500, and when the plaintiff was in great need of money, he applied to Superintendent Hill for the balance of $600 which was due him under that contract. The superintendent told the plaintiff that the company had no money, but if the plaintiff would give a clear receipt for the $600, that he would give his individual check for $400. The plaintiff stated that he did not think it right to take advantage of his necessities, and that he did not want to be swindled out of the other $200 which was still due him; when the superintendent told him, “You just sign that receipt, and the $200 will be all right.” The plaintiff then signed the receipt, with the understanding that the $200 was still due and would be paid.

1- mmtforeai^receipt in *4702. Express agreement. 3. Receipt as evidence. *468It is claimed by the railroad company that this payment by Hill was a perfect accord and satisfaction. To this we cannot agree. It is a well-settled principle of law that the payment of a part of an ascertained, overeme, and undisputed debt, although accepted as full satisfaction, and a receipt in full is given, does not estop the creditor from recovering the balance. In such a case, the agreement to accept a smaller sum in payment of a greater is regarded to be without consideration. (Bridge Co. v. Murphy, 13 Kas. 35.) It has been stated by some of the courts that the rule is rigid, rather unreasonable, and to some extent against good faith, and one not to be extended beyond its precise import, and therefore that any new consideration or any collateral benefit received by the creditor, which would raise a technical legal consideration, however small, is sufficient to support the agreement. Before the payment of the $400 to the plaintiff can operate as a satisfaction of his claim for $600, it must not only appear that there was' some new consideration for the agreement to accept a smaller sum in extinguishment of the debt, but it must "also appear that the parties mutually agreed that the sum paid should be *469accepted in discharge of the entire debt. It may be conceded that the payment of a smaller sum before it is due, or at a place different from that where the money was agreed to be paid, or where the note or obligation of a third person is given in payment, might be treated as of some benefit to the creditor, and if it was so agreed, it would operate as a satisfaction of the whole debt. The railroad company insists that the giving and acceptance of the individual check of the superintendent of the defendant company is sufficient to afford a technical legal consideration, and make the rule mentioned inapplicable. It appears, however, that the plaintiff was employed by Hill, the superintendent and representative of the company, and that the receipt which was prepared by Hill for the signature of the plaintiff recited that the $400 was received from the St. Louis, Fort Scott & "Wichita Eailroad Company. The company can only act through its officers and agents, and although the superintendent gave his individual check, there’ were grounds for the conclusion that the payments were made solely for and in behalf of the company. But whether Hill acted for the company or is to be regarded as a third person in the transaction, it is clear that an essential element of accord and satisfaction is wanting. There was no agreement that the sum paid should operate as a total extinguishment of the entire indebtedness. This was the claim of the railroad company, and there was considerable evidence offered in support of it; but the finding of the court is substantially that notwithstanding the signing of the receipt for the entire sum, there was an understanding and agreement that the balance was still due and would be paid. There was then $200 of a balance due to the plaintiff on the “ right-of-way cases,” and it will be observed that this is the amount of the last payment, and the amount mentioned in the final receipt, which payment and receipt the railroad company insists is a valid discharge of the plaintiff’s claim for services in the “Whittaker cases.” Treating this as a payment of what was due under the former contract for the “right-of-way cases,” as *470the court below seems to have done, nothing whatever has been paid to the plaintiff upon the claim on which he - sues. The railroad company contends that the final payment and receipt should be regarded as a discharge of the entire debt; first, because the auditor of the railroad, in making the payment, gave his individual check; and second, because the payment was the result of a compromise upon a doubtful and disputed claim. Neither of these claims can be maintained, for the reason that the payment of the $200 was not accepted by the plaintiff as a full satisfaction of his claim against the company. As we have seen, the payment of a less sum does not have ttie effecfc of satisfying a greater one unless it has been expressly accepted as such by the creditor. It is true the plaintiff signed the receipt acknowledging payment in full, but there was no contract embodied in the receipt. It is well settled in this state, that a receipt furnishes only prima fade evidence of the declarations and admissions which it contains,

and that a party giving a receipt admitting payment in full has a right to show that it is untrue. (Clark v. Marbourg, 33 Kas. 471; Bridge Co. v. Murphy, 13 id. 35; Stout v. Hyatt, 13 id. 232.) This receipt, then, was open to explanation or contradiction, and the court finds that at the time of receiving the check and signing the receipt, the plaintiff insisted that he still claimed compensation for all his services in the “Whittaker cases.” It seems that in connection with the delivery of the check, and in the presence of the auditor, the plaintiff made and filed with the auditor a written protest claiming that the services for which this action was brought still remained due and unpaid. It also appeal's that the check, receipt and protest were executed in the evening, after banking hours, so that the check could not be and was not paid until the next day, and there was therefore ample time after the filing of the protest for the company or its auditor to stop the payment of the check; but this was not done.

Under these circumstances we must conclude that the plain*471tiff did not agree to relinquish his claim for services in the Whittaker cases; and as the $200 payment was not accepted as a satisfaction of that claim, it cannot have that effect.

The judgment of the district' court will therefore be affirmed.

All the Justices concurring.