Gambar halaman
PDF
ePub

cover the amount certified by the chief engi (3) The court below erred in holding that
neer of $3,895,793.79 without the deduction the question whether there was any evidence
claimed by the defendants for nut locks of in the record to sustain the finding that the
$9,558.63, and without allowance to the de- defendant in June, 1888, wrongfully took
fendant by way of forfeiture for noncomple-possession of certain lumber and converted
tion of the railway on the 1st day of June, it to its own use was not reviewable: (4)
1887, said sums together amounting to $49,- The court below erred in holding that it was
558.63 with interest from March 9, 18SS, and proper to allow plaintiff to amend his com-
is also entitled to recover for timber used by plaint on the trial against defendant's objec
the defendant on the 30th day of June, 18SS, tion, by adding thereto an action sounding
to the amount of $2,425 with interest from in tort and to recover thereon.
June 30, 1888, the whole amounting at the
date of this report, viz., the 4th day of De
cember, 1897, to the sum of $81,305.88, for
which with interest from this date and dis-
bursements the plaintiff is entitled to judg
ment, less amount paid by the defendant in
excess of the reserved $40,000, $521.75, with
interest from and to the same date, being in
all this day $826.53.

"There will be judgment, therefore, for the plaintiff for $80,479.35 with interest and costs, interest to be computed from December 4, 1897."

Mr. Burton Hanson argued the cause and, with Mr. George R. Peck, filed a brief for petitioner:

Clark's acceptance of the amount agreed upon in his settlement as the balance due on the account and in full settlement of all claims and demands embraced therein is as binding upon him, in the absence of fraud or mistake, as if such balance had been determined by judicial proceedings to which he was a party.

Kingsley v. Melcher, 56 Hun, 547, 10 N. Y. Supp. 63.

An account cannot be said to be liquidated when any item thereof is in dispute; and when such is the case a release in full, even though it is given upon the payment of the amount of the undisputed items of the account only, is conclusive as against the right of the creditor to recover all or any portion of the amount of the disputed items, unless such release was procured by fraud, or was the result of mutual mistake.

In addition to the foregoing findings of fact, twenty-seven additional findings of fact were made at the request of defendant. They related to, or set forth, the execution of the contract for the construction of the road; a supplemental agreement by which the sum of $40,000 was to be deducted from the contract price if the road was not completed by June 1, 1887; the failure of Clark to complete the road in that time; the final estimate and certificate of the chief engineer (363]of the company; the sending of the state- Fuller v. Kemp, 138 N. Y. 231, 20 L. R. A. ment of account and release to Clark, with 785, 33 N. E. 1034; Nassoiy v. Tomlinson, the information that, on the same being 148 N. Y. 326, 42 N. E. 715; Komp v. Raysigned and returned by him, a check for the mond, 42 App. Div. 32, 58 N. Y. Supp. 909; balance due him, $173,549, would be sent to Goodrich v. Sanderson, 35 App. Div. 546, 55 him; the return of said statement and release N. Y. Supp. 881; Ostrander v. Scott, 161 Ill. signed by Clark, and the sending to him of a 339, 43 N. E. 1089; Tanner v. Merrill, 108 check for such balance, March 9, 1888; the Mich. 58, 31 L. R. A. 171, 65 N. W. 664; deposit by Clark of said check and his reten- United States v. Child, 12 Wall. 232, 20 L. tion of the amount paid him thereon; the ex-ed. 360; United States v. Justice, 14 Wall. penditure of the $40,000 (and the $521.75 besides), reserved by the company, with Clark's consent, at the time of the settlement, to meet unpaid claims against Clark, incurred in the construction of the road; the furnishing of nut locks to Clark by the company for the construction of the road; and that the company did not require Clark to furnish any material or perform the work of furnishing or erecting any structures of a more expensive design than required of him by the contract for the construction of the road, otherwise than as set forth in the final estimate of the chief engineer.

Amendments to the complaint were allowed by the referee over defendant's objection and exception, and approved by the court under like objection and exception.

The errors assigned were that: (1) The court below erred in holding that the findings of fact supported the judgment as to the item of $9,558.63 for nut locks, and the item of $40.000 for time forfeiture: (2) The court below erred in holding that there was no consideration for the settlement made by the parties as to the items of $9,558.63 for aut locks, and $40,000 for time forfeiture:

535, 20 L. ed. 753; United States v. Clyde, 13 Wall. 35, 20 L. ed. 479; Mason v. United States, 17 Wall. 73, 21 L. ed. 565.

An account is not liquidated until the balance due is agreed upon by the parties, or is fixed by operation of law. To liquidate an account is to adjust it, to settle it; and until the exact balance due is agreed upon, there can be no liquidation of an account.

Century Dict.; 2 Abbott, Dict. Terms & Phrases, 50; 13 Am. & Eng. Enc. L. 845, 846.

The courts regard the rule preventing a creditor from making a valid contract to take a less sum of his debtor in discharge of a greater as technical and unreasonable, and they are eager to find some element in the transaction which can be held as a consideration.

Jaffray v. Davis, 124 N. Y. 168, 11 L. R. A. 710, 26 N. E. 351; Henson v. Stever, 69 Mo. App. 136; Kellogg v. Richards, 14 Wend. 119.

A finding without any evidence whatever to support it presents a question, and is an error, of law, and has always been regarded as a ruling upon a question of law.

Booth v. Boston & A. R. Co. 67 N. Y. 593; |
Pollock v. Pollock, 71 N. Y. 137; Halpin v.
Phenix Ins. Co. 118 N. Y. 165, 23 N. E. 482.
A similar rule prevails in the courts of
the United States, where it is held to be the
duty of the court to direct a verdict, one
way or the other, where there is no evidence
to sustain a verdict to the contrary, or
where such a verdict would be set aside, if
rendered.

Veagh, with Messrs. George R. Peck,
Charles W. Bangs, and Burton Hanson, filed
a brief in support of petition for certiorari.
Mr. L. Laflin Kellogg argued the cause
and, with Mr. Alfred Petté and Messrs. Kel-
logg, Rose, & Smith, filed a brief for respond-
ent:

Merrill v. Floyd, 5 U. S. App. 224, 53 Fed.
Rep. 172, 3 C. C. A. 494.

The jurisdiction of the circuit court of ap-
peals to review a judgment entered in a case
tried in the Federal court otherwise than ac-
Schuylkill & D. Improv. Co. v. Munson, cording to the strict course of the common
14 Wall. 447, 20 L. ed. 871; Pleasants v.law is limited to cases tried in accordance
Fant, 22 Wall. 116, 22 L. ed. 780; Chicago, with U. S. Rev. Stat. §§ 649, 700.
R. I. & P. R. Co. v. Houston, 95 U. S. 697,
24 L. ed. 542; Griggs v. Houston, 104 U. S.
553, 26 L. ed. 840; Schofield v. Chicago, M.
& St. P. R. Co. 114 U. S. 615, 29 L. ed. 224,
5 Sup. Ct. Rep. 1125; Dwight v. Germania
L. Ins. Co. 103 N. Y. 358, 57 Am. Rep. 729,
8 N. E. 654; Reynolds v. Great Northern R.
Co. 32 U. S. App. 577, 69 Fed. Rep. 810, 16
C. C. A. 435, 29 L. R. A. 695.

If the facts are found by the court they
are conclusive only in case there is a con-
flict of evidence, or if there is any evidence
to sustain them; and the appellate court
will examine the evidence for the purpose of
ascertaining whether there is any such evi-
dence.

Lancaster v. Collins, 115 U. S. 222, 29 L.
ed. 373, 6 Sup. Ct. Rep. 33; Runkle v. Burn-
ham, 153 U. S. 217, 38 L. ed. 694, 14 Sup. Ct.
Rep. 837; Beuttell v. Magone, 157 U. S. 154,
39 L. ed. 654, 15 Sup. Ct. Rep. 566; Chrystie
v. Foster, 26 U. S. App. 67, 61 Fed. Rep. 551,
9 C. C. A. 606; Fisher v. United States Nat.
Bank, 26 U. S. App. 448, 64 Fed. Rep. 710, 12
C. C. A. 413; Merwin v. Magone, 35 U. S.
App. 741, 70 Fed. Rep. 776, 17 C. C. A. 361;
Magone v. Origet, 35 U. S. App. 744, 70 Fed.
Rep. 778, 17 C. C. A. 363; Kirtz v. Peck, 113
N. Y. 222, 21 N. E. 130; Barrow S. S. Co. v.
Mexican C. R. Co. 134 N. Y. 20, 17 L. R. A.
359, 31 N. E. 261.

In an action in the circuit court submitted,
by stipulation of the parties, in accordance
with a practice prevailing in the state where
the court is held, to the decision of the judge
"as a referee," this court will, upon a writ
of error, consider the question whether there
was any error of law in the judgment ren-
dered by the court upon the facts found by
the referee.

Paine v. Central Vermont R. Co. 118 U.
S. 152, 30 L. ed. 193, 6 Sup. Ct. Rep. 1019.
Where the findings of the referee have
been ordered to stand as the findings of the
court, as was done in the case at bar, this
court will consider whether the facts found
by the referee sustain the judgment.

The appellate court cannot review excep-
tions to the admission or exclusion of evi-
dence, or to findings of fact by the referee,
or to his refusal to find facts as requested.

Shipman v. Straitsville Cent. Min. Co. 158
U. S. 356, 39 L. ed. 1015, 15 Sup. Ct. Rep.
886; Roberts v. Benjamin, 124 U. S. 64. 31
L. ed. 334, 8 Sup. Ct. Rep. 393; Boogher v.
New York L. Ins. Co. 103 U. S. 90, 26 L. ed.
310; Bond v. Dustin, 112 U. S. 604, 28 L.
ed. 835, 5 Sup. Ct. Rep. 296; Paine v. Central
Vermont R. Co. 118 U. S. 152, 30 L. ed. 193,
6 Sup. Ct. Rep. 1019; Andes v. Slauson, 130
U. S. 435, 32 L. ed. 989, 9 Sup. Ct. Rep. 573.
To the same effect are the decisions of the
circuit court of appeals in the various cir-
cuits.

Shipman v. Ohio Coal Exchange, 37 U. S.
App. 471, 70 Fed. Rep. 652, 17 C. C. A. 313;
Hamilton County Comrs. v. Sherwood, 27 U.
S. App. 458, 64 Fed. Rep. 103, 11 C. C. A.
507; Abraham v. Levy, 30 U. S. App. 713, 72
Fed. Rep. 124, 18 C. C. A. 469; Merrill v.
Floyd, 5 U. S. App. 224, 53 Fed. Rep. 172, 3
C. C. A. 494; Wesson v. Saline County, 34
U. S. App. 680, 73 Fed. Rep. 917, 20 C. C. A.
227; Shipman v. Straitsville Cent. Min. Co.
158 U. S. 356, 39 L. ed. 1015, 15 Sup. Ct.
Rep. 886.

A receipt is simply prima facie evidence
of payment.

35 L. ed. 860, 12 Sup. Ct. Rep. 84; Harris v.
Fire Ins. Asso. v. Wickham, 141 U. S. 564,
Davis, 44 Fed. Rep. 172; Miller v. Coates, C6
Ryan v. Ward, 48 N. Y. 207, 8 Am. Rep. 539.
N. Y. 609; 19 Am. & Eng. Enc. L. p. 115;

Payment by a debtor of a part of his debt
is not a satisfaction of the whole.

United States v. Bostwick, 94 U. S. 53, 24
L. ed. 65; Fire Ins. Asso. v. Wickham, 141
U. S. 564, 35 L. ed. 860, 12 Sup. Ct. Rep. 84;
Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539;
Gray v. Barton, 55 N. Y. 68, 14 Am. Rep.
181; Perkins v. Lockwood, 100 Mass. 249, 1
Am. Rep. 103; Curran v. Rummell, 118 Mass.
483; McKay v. Myers, 168 Mass. 312, 47 N.
E. 98; Hodges v. Truax, 19 Ind. App. 651,
49 N. E. 1079; Meyer v. Green, 21 Ind. App.

Shipman v. Straitsville Cent. Min. Co. 158
U. S. 356, 39 L. ed. 1015, 15 Sup. Ct. Rep.
886; Sicard v. Buffalo, N. Y. & P. R. Co. 15
Blatchf. 525, Fed. Cas. No. 12,831; Tyler v.
Angevine, 15 Blatchf. 536, Fed. Cas. No. 14,-138, 51 N. E. 942; Fletcher v. Wurgler, 97
306; Lyons v. Lyons Nat. Bank, 8 Fed. Rep.
369; Sayward v. Dexter, H. & Co. 44 U. S.
App. 376, 72 Fed. Rep. 758, 19 C. C. A. 176;
North American Loan & T. Co. v. Colonial
& U. S. Mortg. Co. 55 U. S. App. 157, 83
Fed. Rep. 796, 28 C. C. A. 88.

Messrs. Bangs, Stetson, Tracy, & Mc-

Ind. 223; Marion v. Heimbach, 62 Minn. 214,
64 N. W. 386; McIntosh v. Johnson, 51 Neb.
33, 70 N. W. 522; Cincinnati v. Cincinnati
Street R. Co. 6 Ohio N. P. 140; Fitch v. Sut-
ton, 5 East, 230.

The authorities are uniform to the effect
that the final certificate, in the absence of

fraud or mistake, is an absolute bar, and binding upon both parties.

Kihlberg v. United States, 97 U. S. 398, 24 L. ed. 1106; Sweeney v. United States, 109 U. S. 618, 27 L. ed. 1053, 3 Sup. Ct. Rep. 344; Mundy v. Louisville & N. R. Co. 31 U. S. App. 606, 67 Fed. Rep. 633, 14 C. C. A. 583; Breyman v. Ann Arbor R. Co. 85 Fed. Rep. 579; Sweet v. Morrison, 116 N. Y. 19, 22 N. E. 276; Smith v. New York, 12 App. Div. 391, 42 N. Y. Supp. 522.

Payment by a debtor of a liquidated amount presently due, and to which he has no defense that can be urged in good faith or with color of right, is not by itself a sufficient consideration to sustain a release by the creditor of other unliquidated claims against the debtor.

Fire Ins. Asso. v. Wickham, 141 U. S. 564, 35 L. ed. 860, 12 Sup. Ct. Rep. 84; United States v. Bostwick, 94 U. S. 53, 24 L. ed. 65; McKay v. Myers, 168 Mass. 312, 47 N. E. 98; Curran v. Rummell, 118 Mass. 483; Perkins v. Lockwood, 100 Mass. 249, 1 Am. Rep. 103; Hodges v. Truax, 19 Ind. App. 651, 49 N. E. 1079; Meyer v. Green, 21 Ind. App. 138, 51 N. E. 942; Marion v. Heimbach, 62 Minn. 214, 64 N. W. 386; Fletcher v. Wurgler, 97 Ind. 223; McIntosh v. Johnson, 51 Neb. 33, 70 N. W. 522.

The doctrine of accord and satisfaction was carried to the extreme limit in Fuller v. Kemp, 138 N. Y. 231, 20 L. R. A. 785, 33 N. E. 1034, and Nassoig v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, and the rule will not be further extended.

Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, 51 N. E. 986.

stituted. There was no finding or contention that the settlement was procured by fraud or duress, or was the result of mutual mistake; nor was there any finding that Clark did not have full knowledge of all the facts at the time he signed and delivered the release, and the presumption was that he had such knowledge. But the proposition is that the release was given without consideration, and that Clark was entitled to recover so far as the items of $40,000 and $9,558.63 were concerned, on the principle that where a liquidated sum is due, the payment of a less sum in satisfaction thereof, though accepted as satisfaction, is not binding as such for want of consideration. Cumber V. Wane, 1 Strange, 426. The rule therein laid down has been much questioned and qualified. Goddard v. O'Brien, L. R. 9 Q. B. Div. 37; *Sibree v. Tripp 15 Mees. & W. 23;[365) Couldery v. Bartrum, L. R. 19 Ch. Div. 399; Foakes v. Bcer, L. R. 9 App. Cas. 621; Notes to Cumber v. Wane, in Smith Lead. Cas. 146; 12 Harvard Law Review, 521.

The result of the modern cases is that the rule only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of part of it; and while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases with

in it.

In Johnson v. Brannan, 5 Johns. 268, 271, it was referred to as "that rigid and rather unreasonable rule of the old law;" and in Kellogg v. Richards, 14 Wend. 116, where the acceptance of a promissory note of a third party for a less sum was held to be a good accord and satisfaction, Mr. Justice

[364] *Mr Chief Justice Fuller delivered the Nelson, then a member of the supreme court

opinion of the court:

The record shows that the cause came on before the district judge, holding the circuit court, for trial, "without a jury, and a trial by jury having been expressly waived by the written consent of the parties duly filed;" that a referee was appointed by written consent in accordance with the modes of procedure in such cases in the courts of record of New York, and with the rules of the circuit court; and that his findings, rulings, and de

cisions were made those of the court. Un

der these circumstances the question whether the judgment rendered was warranted by the facts found was open for consideration in the circuit court of appeals, and is so here. and that is sufficient for the disposition of the case. Shipman v. Straitsville Cent. Min. Co. 158 U. S. 356, 39 L. ed. 1015, 15 Sup. Ct. Rep. 886.

By the writing executed and delivered by him March 9, 1888. Clark acknowledged the receipt of $173, 532.49 "in full satisfaction of the amount due me on such estimates, and in full satisfaction of all claims and demands of every kind, name, and nature, arising from, or growing out of, said contract of March 6, 1886, and of the construction of said railroad, excepting an item not material here. Five years and nearly five months after the receipt of the money and the execution and delivery of the discharge, this action was in

[ocr errors]

of New York, said: "It is true there does not seem to be much, if any, ground for disless sum of money is paid and agreed to be tinetion, between such a case and one where a accepted in full. which would not be a good plea. The rule that the payment of a less sum of money, though agreed by the plaintiff to be received in full satisfaction of a debt exceeding that amount, shall not be so considered in contemplation of law, is technical and not very well supported by reason. Courts therefore have departed from it upon slight distinctions."

So, in Brooks v. White, 2 Met. 283, 37 Am. Dec. 95, the supreme judicial court of Massachusetts said that "the foundation of the rule seems therefore to be, that in the case of the acceptance of a less sum of money in discharge of a debt, inasmuch as there is no new consideration, no benefit accruing to the creditor, and no damage to the debtor, the creditor may violate, with legal impunity, his promise to his debtor, however freely and understandingly made. This rule, which obviously may be urged in violation of good faith, is not to be extended beyond its precise import; and whenever the technical reason for its application does not exist. the rule itself is not to be applied. Hence judges have been disposed to take out of its application all those cases where there was any new consideration, or any collateral

[366]benefit *received by the payee, which might
raise a
technical legal consideration, al-
though it was quite apparent that such con-
sideration was far less than the amount of
the sum due."

To same effect, Ranney, J., in Harper v.
Graham, 20 Ohio, 115; Jaffray v. Davis, 124
N. Y. 164, 11 L. R. A. 710, 26 N. E. 351;
Smith v. Ballou, 1 R. I. 496; Mitchell v.
Wheaton, 46 Conn. 315, 33 Am. Rep. 24; Sey-
mour v. Goodrich, 80 Va. 303.

In this case it cannot be said that at the time the release was executed there was no good reason to doubt that these items were open to dispute. Th good faith of the company in claiming their allowance is not impugned, and as Judge Lacombe said: "Both items were legitimate matters of dispute, and, unless settled by agreement of the parties, might fairly be brought by either party into court."

And the cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be re

In some of the states the contrary rule has been established by statute. Ala. Code, § 2774; Cal. Civ. Code, § 1524; Georgia Code, § 3735; Maine Rev. Stat. chap. 82, § 45; N. C. Code, § 574; Tenn. Code 1884, § 4539; Va. Code 1897, § 2858; Weymouth v. Bab-ceived in full satisfaction, will be sustained cock, 42 Me. 42; Memphis v. Brown, 1 Flipp. 188, Fed. Cas. No. 9,415; McArthur v. Dane, 61 Ala. 539.

The findings of fact bearing on the items of $40,000 for forfeiture, and $9,558.63 for nut locks, exclude any other inference than that there was a dispute between the parties in respect of those items as to the facts on which the claim for their allowance was based. This being so, it is insisted that the total balance of $223,091.02 (as it would have been if $9,558.63 had not been deducted) cannot be held to have been liquidated as a whole, that is, agreed upon by the parties or fixed by operation of law, and that the contention cannot be sustained that where there is a dispute as to an aggregate amount due, and the debtor offers to pay so much thereof as he concedes to be correct, and the creditor accepts, is paid, and releases, nevertheless the creditor can afterward assert the disputed part of his claim on the ground that he has only received what was undeniably due him.

In United States v. Bostwick, 94 U. S. 53, 67, 24 L. ed. 65, 66, it was said that "payment by a debtor of a part of his debt is not a satisfaction of the whole except it be made and accepted upon some new consideration;" while in Baird v. United States, 96 U. S. 430, 24 L. ed. 703, it was held that if the debt be unliquidated and the amount uncertain, this rule does not apply. "In such cases the question is whether the payment was in fact made and accepted in satisfac

tion."

as an extinguishment of the whole.

In Fuller v. Kemp, 138 N. Y. 231, 20 L. R. A. 785, 33 N. E. 1034, where certain items of an account were disputed, and certain items were undisputed, and defendant paid plaintiff only the amount of the undisputed items, the court held that the dispute over certain of the items made the account an unliquidated one, and that plaintiff, by accepting the amount of the undisputed items with notice that it was sent as payment in full, was precluded from recovering the balance of his demand.

Nassoiy v. Tomlinson, 148 N. Y. 326, 330, 42 N. E. 715, 716, is to the same effect, and the court said: "A demand is not liquidated even if it appears that something is due, unless it appears how much is due, and when it is admitted that one of two specific sus is due, but there is a genuine dispute as to which is the proper amount, the demand is[368] regarded as unliquidated, within the meaning of that term as applied to the subject of accord and satisfaction."

In Ostrander v. Scott, 161 Ill. 339, 43 N E. 1089, plaintiff had an account against defendant amounting to $5,282.58, the items of which were not in dispute, but defendant "claimed that he was entitled to be allowed the sum of $1,210 for commissions, and accordingly he sent his check for the difference to plaintiff, at the same time notifying him that it was sent in settlement of his account in full, and if not accepted as such to return it. The check was retained by plaintiff, and he afterwards brought suit against defendant to recover the amount withheld, but the supreme court of Illinois held that there could be no recovery, and that an account cannot be considered as liquidated, so as to prevent the receipt of a less amount as payment from operating as a satisfaction, where there is a controversy over a set-off and the amount of the balance.

In Fire Ins. Asso. v. Wickham, 141 U. S. 564, 577, 35 L. ed. 860, 866, 12 Sup. Ct. Rep. 84, 87, Mr. Justice Brown stated the doc(367)trine thus: "The rule is well established that where the facts show clearly a certain sum to be due from one person to another, a release of the entire sum upon payment of a part is without consideration, and the cred itor may still sue and recover the residue. If there be a bona fide dispute as to the amount due, such dispute may be the subject of a compromise and payment of a certain sum as a satisfaction of the entire claim, but where the larger sum is admitted to be due, or the circumstances of the case show that there was no good reason to doubt that it was due, the release of the whole upon payment of part will not be considered as a compromise, but will be treated as without consideration and void."

In Tanner v. Merrill, 108 Mich. 58. 31 L. R. A. 171, 65 N. W. 664, plaintiff sought to recover a sum which had been deducted from his wages by defendants, his employers. The amount of his wages was not disputed, but the right to make any deduction was questioned. Plaintiff received the amount of his wages less the deduction, and gave a receipt in full, and afterwards brought suit to recover the balance on the ground that, having only received the amount admitted to be due, there was no consideration for the release as

between the parties to this action, otherwise
than by said receipt or paper of March 9,
1888." The release in question allowed to
Clark, that is, debited the company with, the
sum of $34,598.90, *"for materials sold by[370]
him to said company, and certain rebates
and matters of that description;" and
charged Clark, that is, credited the company,
with $40,000 by way of forfeiture, and $9,-
558.63 for nut locks. It was in this respect,
in effect, a statement of cross-demands. The
$40,000 was specifically described and the
$9.558.63 was included in the total credits
stated.

to that which was disputed. The supreme
court of Michigan held that the plaintiff
could not recover, and that the rule that a
receipt of part payment to be effective in the
discharge of the entire debt must be rested
upon a valid consideration is limited to
cases where the debt is liquidated by agree-
ment or otherwise; that a claim any portion
of which is in dispute cannot be considered
to be liquidated within the meaning of the
rule; and that a receipt in full, given upon
payment of the undisputed part of the claim,
after a refusal to pay another part which is
disputed, is conclusive as against the right
of the creditor to recover a further sum, in That this contractor, carrying on the work
the absence of mistake, fraud, duress, or un- of building 200 miles of railroad, and receiv
due influence.
ing payments on vouchers from time to time,
Without analyzing the cases, it should be must have been aware from his own books
[369]added that it has been frequently ruled by and papers that the $9,558.63 was thus in-
this court that a receipt in full must be re- cluded, can hardly be reasonably denied, es-
garded as an acquittance in bar of any fur- pecially as he had objected to being charged
ther demand in the absence of any allegation with it. Indeed we do not understand that
and evidence that it was given in ignorance there is any suggestion that Clark was ig
of its purport, or in circumstances constitut-norant of any part of the account.
ing duress, fraud, or mistake. De Arnaud
v. United States, 151 U. S. 483, 38 L. ed. 244,
14 Sup. Ct. Rep. 374; United States v. Gar-
linger, 169 U. S. 322, 42 L. ed. 764, 18 Sup.
Ct. Rep. 364; United States v. Adams, 7
Wall. 463, 19 L. ed. 249; United States v.
Child, 12 Wall. 232, 20 L. ed. 360; United
States v. Justice, 14 Wall. 535, 20 L. ed. 753;
Baker v. Nachtrieb, 19 How. 126, 15 L. ed.
528.

The general principle applicable to settle ments was thus expressed by Mr. Justice Clifford, in Hager v. Thomson, 1 Black, 80, 93, 17 L. ed. 41, 44: "Much the largest number of controversies between business men are ultimately settled by the parties themselves; and when there is no unfairness, and all the facts are equally known to both sides, an adjustment by them is final and conclusive. Oftentimes a party may be willing to yield something for the sake of a set tlement; and if he does so with a full knowledge of the circumstances, he cannot affirm

the settlement and afterwards maintain a

suit for that which he voluntarily surren-
dered."

But apart from the controversy over the

As to the $34,558.90, it appears from the contract and final certificate and estimate, which are set forth in the principal or additional findings, that this item represented no part of the work specified under the contract, nor extra work, nor materials ordered by the company, and that it was not included in the contract or in the certificate and final estimate.

As was said by Lacombe, J., who delivered
the principal opinion below: "Indeed it is
plain to a demonstration from the findings,
that the item in question was not included
either in the original contract or in the ex-
tra work, and must represent an additional
and independent contract of sale." And the
learned judge further said: "From what
has been said before, it is plain that, if at
the time of the transactions relied upon as
showing accord and satisfaction, this sum
of $34.598.90 so allowed to Clark represented
an unliquidated item, the amount of which
he would have to establish by evidence in
case he had sued to recover it, its allowance
would be a suilicient consideration to uphold
to him upon the settlement of March 9, 1888,
that settlement against him as an accord and

satisfaction of all his claims." There was
no finding that this amount had ever been
agreed upon or liquidated by the parties in a
manner that would have entitled Clark to
have recovered the amount from the com-
pany as an independent item, otherwise than
by the statement of it in the account preced-

two items of $40,000 and $9,558.63, which
was composed by the release, there was an
item of $34,558.90 credited to Clark in the
final account, the allowance of which, the
company contends, furnished ample consid-
eration therefor, although the adequacy of
the consideration is not, in such cases, opening, and which formed a part of, the receipt
to inquiry.

and acknowledgment of satisfaction *which[371}
(lark executed and delivered to the company
March 9, 1888. Nor was there any finding
showing, or tending to show, that the com-
pany would have placed that sum to Clark's
credit except as an item in an account which
credited the company with the two charges
for nut locks and forfeiture.

The referee found: "That no other final
settlement of the accounts under said con-
tracts had been had between the plaintiff and
the defendant at the time the said last-men-
tioned paper was signed and delivered."
"That no account was ever, otherwise than
by said paper and the receipt of said money,
stated of the transactions under and con- But the circuit court of appeals held that
nected with said contract between the plain- because of the fourteenth finding of fact, it
tiff and the defendant;" and also as a con- must be assumed that the referee was satis-
clusion: "That no account of the transac-fied from the testimony, though he did not
tions under this contract, and of the claims so find in terms, that the prior transactions
sued on in this action, was ever had or stated between the parties were such that this sum

« SebelumnyaLanjutkan »