49 Ind. App. 109 | Ind. Ct. App. | 1911
Appellant sued appellee on two promissory notes. Appellee denied neither the execution nor the validity of the notes, but claimed that they were included in a settlement made prior to the bringing of this action, when he paid to appellant $2,200, and was given a receipt in full of all claims and demands against him. Appellant contended that the notes were not included in said settlement. The entire case depended on whether the notes were so included, which fact was found against appellant by the verdict of the jury.
The sole errors relied upon for reversal are the giving of instructions five and six at appellee’s request.
“Payne, Ohio, June 21, 1907.
Received of Justin A. Wilson $2,200, in settlement of all claims and demands of whatever kind or nature which I have against him. Joseph Wilson.
Attest :
Don O. Corbett.
D. E. Wilson.”
On returning to his home, appellee on June 26 wrote to appellant asking him why he had not, as he had promised, sent to him the two notes in suit, which he had been unable to get from the bank on the night of the settlement. On July 1, before receiving an answer to this letter, he wrote another of similar character. The first letter was answered by appellant’s attorney, on July 1, claiming that the notes in suit were not embraced in the settlement.
The language of the receipt would, it is conceded by the parties, embrace the notes in suit, and appellee’s conduct after the settlement would tend to show that he believed these notes were embraced in the settlement. Appellant, however, denied that on the night of the settlement he promised to send these notes to appellee, and to include them in the settlement, and Denton E. Wilson, who was with appellant and appellee during the time they were together, except for about ten minutes, denies that these notes were mentioned in any way in his hearing.
It is true that it appears that, except in the first letters
Instruction five is as follows: "I instruct you, gentlemen, that while the law permits the maker of a receipt given in settlement of a controversy to explain its terms and the circumstances under which they were written, this does not mean that either of the parties to the receipt can, by explanation, change the facts and circumstances as they actually existed at the time the receipt was given. It does not follow that because one may be permitted to explain an ordinary receipt given by one person to another, that either person may explain a secret intention which he may at the time have had in his mind, and which the other person knew nothing of, and if in this ease you find from all the evidence and circumstances proved, that the settlement made between plaintiff and defendant on June 21, 1907, Avas made by defendant with the understanding and belief that the notes in controversy were included in it, and that plaintiff knew or should have knoAvn by the negotiations which took place that the defendant so understood the fact, and while knoAving such fact executed the receipt in controversy, and upon its delivery to defendant took and accepted $2,200 from defendant, then’and in such event your verdict must be for defendant, no matter Avhat secret intention, if any, plaintiff may have had in his mind at the time. ’ ’
The defense in this case is that of an accord and satisfaction. Appellant argues that "in order to make out this defense, the proof must be clear and unequivocal, that the condition imposed by the debtor, namely, that the amount tendered was to be in full payment of the entire debt, Avas insisted upon by such debtor; that if a smaller amount than
The law bearing on this proposition is set out in the ease of Talbott v. English (1901), 156 Ind. 299, as follows: “The rule of law may be said to be: When the amount is in dispute, or is uncertain and unliquidated, and the debtor offei’s the creditor a definite sum in satisfaction, and accompanies the offer with such acts and declarations as will unmistakably indicate to the creditor the condition that an acceptance of the offer is a complete accord and satisfaction, such offer can only be accepted as payment in full of the claim. * * * Before the creditor is compelled to go with less than the sum actually due him it must be perfectly clear that he accepted less with the full knowledge that it was offered him, only upon the condition that its acceptance should be in discharge of the whole claim. In the case of Petit v. Woodlief [1894], 115 N. C. 120, 20 S. E. 208, it is said: ‘The party to whom the offer is made must of necessity understand, from its very terms, that if he takes the money he takes it subject to such condition;’ and in the case of Fuller v. Kemp (1893), 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785, this language is used: ‘To constitute an accord and satisfaction, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom, that if he takes it, he takes it subject to such conditions.’ ”
From this quotation it will be seen that the Supreme Court, in stating that a debtor who attempts to pay in full
The instruction before us informs the jury that if it finds that “the plaintiff knew, or should have known, by the negotiations ivhich took place,” that defendant understood that the notes in controversy were included in the settlement, and while knowing such fact “executed the receipt in controversy, and upon its delivery to the defendant took and accepted $2,200, ’ ’ it must find for appellee.
The court, in this instruction, especially in the use of the words “should have known,” has not used language fully in conformity with the rule laid down in the case of Talbott v. English, supra, for to prevent the creditor from recovering the entire sum which he claims to be due him, the debtor who pays him a smaller sum must indicate to the creditor that the sum paid to him is paid upon the condition that it shall be full payment of the claim, in such a manner that he is bound to understand the condition and has full knowledge of it. The debtor’s duty is more than to make the condition so plain that one in the use of reasonable prudence and diligence would become aware of it. He must positively make the creditor understand it. The words “knew, or should have known, ’ ’ do not imply absolutely that the jury must find that appellant knew of the condition attached to appellant’s payment, in order to find for appellee. However, in a later clause in the same instruction, the only one relating to the execution of the receipt, the court told the jury that to find for appellee, it must find that appellant, while knowing such fact (that appellee believed the notes were included in the settlement) executed the receipt and took $2,200. While not entirely approving the language
Appellant has scarcely argued the alleged error in the giving of instruction six, and it is sufficient to say that upon due examination we have found it applicable to the issues and the evidence.
No reversible error having been made to appear, the judgment is affirmed.