Armstrong v. Latimer, Meyers & Co.

Opinion -by Mr. Justice Green, While it is true that the contract between the parties was a continuing contract during a period of five 3rears, it is also true that one of the terms of the contract was, that “ Settlements for said coal shall be made upon the fifteenth day of each month for all coal delivered before the first day of such month.” On the trial, Robert Latimer, being one of the defendants and called as a witness on their behalf, was asked to tell about the quality of coal which the defendants received from the plaintiff from September 1,1890 to 1891. To this offer plaintiff’s counsel objected on the ground that none of that coal was involved in the suit, that the action was brought to recover only for coal delivered in June and July, 1892, all the coal previously delivered having been paid for. Thereupon the objection being sustained, counsel for defendants made an extended offer of proof, not denying the allegation of the plaintiff’s counsel, the substance of the offer being that large quantities of coal had been received from the plaintiff from September 1, 1890, to the time of bringing this suit; that very much of the [401] coal thus received was of inferior and worthless quality; that payment having been demanded by the plaintiff for the coal already delivered, the defendants refused to pay; “that Armstrong thereupon refused, unless payment was made of the whole amount claimed by him, to continue the shipment of coal according to the contract, in June 1892. That at that time it was impossible to buy any coal in the market- from other parties, and that by reason thereof Latimer & Meyers paid to Armstrong all the money claimed by him for the coal delivered up to that time, stating to Armstrong at the time of making the payment that they did so because of his refusal to furnish them coal, and that they would hold him responsible for the loss and would take the same out of the coal he thereafter should deliver under the contract. We make' the offer only to cover the deficiencies in the coal up to June.” To this offer objection was made that it was incompetent and irrelevant and the objection was sustained and exception noted, and the rejection of this offer of proof constitutes the principal assignment of error. It seems clear to us that the offer was properly rejected. Specifically, all the coal previousl}r delivered up to June, 1892, was paid for in full by the plaintiffs. Beyond-all question this was a voluntary payment which could not be recovered back, under all the authorities, aud this proposition is not controverted by the appellants. On the contrary appellants’ counsel admit that one who pays a bill cannot recover back the amount paid because it was paid with a protest that it was unjust, or declared to the creditor that he would set it off against the next transaction he had with him. But appellants argue that this is not such a case because the contract is a continuing one and the payment made did not close the transaction. We do not-perceive the force of this contention. As we said before, the contract specifically provided that there should be settlements, on the fifteenth of evpry month for all coal delivered up to the first of the month, so that it cannot be said that the contract left open, or intended to leave open, all the transactions under it until the end of the business done under its terms. There were to be settlements, and they were to occur every month and they were to include all coal delivered before the first of the month. We can only understand this to mean that the402 amounts owing by the defendants to tbe plaintiff were to be fixed, determined, adjusted, settled at the middle of the month for all coal delivered before the first of the month. We cannot hold that these parties having used such language meant really its opposite, that is, that although these monthly settlements were actually made, and the amounts to be paid definitely ascertained and actually paid, those preceding deliveries still remained open, subject to any kind of controversy which either party might choose to set up subsequently, throwing open the whole subject of the deliveries, which would necessarily include the amount and quality of the coal delivered, the price to be paid and all matters affecting those questions. We could not possibly so hold without disregarding the plain meaning of the words of the contract and also its manifest spirit and purpose. The subject seems really too plain for argument. There was no element of duress about such payments, and there was no pretence of any mistake or fraud in the settlement. It seems unnecessary to pursue the subject farther. The assignments of error are dismissed. Judgment affirmed.