48 Minn. 62 | Minn. | 1892
This action is brought to recover, among other claims, the balance claimed to be due upon a contract for excavating at specified prices per cubic yard for the foundation for a building in Duluth. By the terms of the contract plaintiff was to complete the work within 50 days from the date of it, and it was .agreed that for every day’s delay in completing it after the 50 the plaintiff should pay as liquidated damages, and not as a penalty, the sum of $100. It is conceded that there was a delay of 38 days after the expiration of the 50 days, though plaintiff now claims that the delay was caused by the fault of the defendant. He did not, however, make such claim to defendant till after the compromise hereinafter mentioned. Defendant pleads an accord and satisfaction as to all the claims in the complaint except 'one, as to which he pleads a tender, and the amount of which claim he brought into court. The principal evidence of the accord and satisfaction consisted of what purports to be the final estimate of the architects under which was a receipt in full signed by plaintiff. The estimate stated the amount of work and contract prices as follows :
2,545 cu. yds. earth excavation at .40, 1,018 00
$14,263 75
Less previous estimates, - 9,328 75
$ 4,935 00
“Thirty-eight days’ demurrage from the time of expiration of contract to the finishing of the work at $100.00 per day, as liquidated damages, to be deducted from this estimate. See contract.”
This was signed by the architects, and under their signature is the receipt: “Beceived payment in full. A. H. Truax.” There appear on it in pencil,-written, as the evidence indicates, by defendant at the time of the payment, under the - 4,935
the figures ------ 2,000
2,935
The $2,935 was the amount paid plaintiff at the time he signed the receipt. Had damages for the delay been fully allowed, there would have been due plaintiff only $1,135, instead of the $2,935 paid him. It is evident, therefore, that there was deducted from plaintiff’s claim for excavating $2,000 on account of the delay, and the oral evidence sustains the'inference raised upon the paper itself. The claim of defendant for damages on account of delay in the work was, to state it most favorably to plaintiff, a disputed claim; and, if the parties compromised it so as to deduct, on account of it, $2,000, instead of $3,800, such compromise was upon a valuable consideration, so as to bind the parties. In such a case the concession made by each is a consideration for the concession made by the other, and, if the agreement is followed by payment made and accepted, it is a good accord and satisfaction. The case is different from the acceptance in full payment of a part only of an undisputed liquidated debt due at the time, in which case there is no concession by the party paying, as a consideration to support the agreement of the other to accept what is paid, and release the remainder. Without deter
Order reversed.
(Opinion published 50 N. W. Rep. 935.)