35 Kan. 464 | Kan. | 1886
The opinion of the court was delivered by
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
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
The judgment of the district' court will therefore be affirmed.