Millen v. Williams

Sheldon, J. Undoubtedly the jury might have found that in what took place between the defendant and the Morrison Company the defendant simply bought his peace in the controversies which had arisen between them. It could be found that he paid the sum of more than $6,000 to the company, not because that was the amount which it was finally agreed that he ought to pay as the balance due upon the collation and comparison of their various claims growing out of the contract between them and the work that had been done thereunder, .and not because he admitted that he was liable for any sum whatever, but merely because he consented to pay that sum for the sake of ending the three suits which were pending between them and in which much larger amounts were involved. If this was so, there was no evidence of any final accounting between the defendant and the Morrison Company or that any amount had become due from him under their contract; and as the conditions of the defendant’s acceptance would not have been performed, of course the present action could not be maintained. The defendant is right in contending that his payment to the company would not then be an admission or estoppel on his part, upon which this action could be maintained. But the jury also could have found that the transaction was something more than a compromise between the parties. They could have found that it was an accounting between two parties having unliquidated demands against each other, none the less different because they grew out of the same contract. Alvord v. Marsh, 12 Allen, 603, 606. In the negotiations which led to the adjustment, the demands of each party and the possible defenses against them were discussed between the representatives of the parties. There were stipulations as to what was to be included in the settlement. The admission of much of the testimony was excepted to by the defendant; but those exceptions have not been argued, and we treat them as waived. Nor do [520] we see any ground upon which this evidence could have been excluded. The issue was, what was the transaction between these parties, judging their intention as it was manifested at the time. The intention and understanding of the defendant were especially material. But this was a question of fact, to be settled by the jury. That was the point of the decision in Colburn v. Groton, 63 N. H. 151, 156, cited by the defendant. If, after the defendant and the Morrison Company had reached their agreement, he had refused to pay the sum decided upon, and the company had sued him upon an account stated to recover that sum, the issue thus presented would have been for the jury. No question has been made as to the authority of the attorneys of the defendant and of the Morrison Company to act for and to bind their respective principals. The case should have been submitted to the jury. See Buttrick Lumber Co. v. Collins, 202 Mass. 413; Allen v. Mayers, 184 Mass. 486, 488; Buxton v. Edwards, 134 Mass. 567; Chace v. Trafford, 116 Mass. 529, 533. The point that this order was not an inland bill of exchange and ought not to have been declared on as such, was not taken at the trial and is not now open. The ruling was not made upon the pleadings, but upon the broad question whether there was any evidence upon which the defendant could be held. Upon the report, judgment must be entered for the plaintiff for $500 with interest from the date of the writ. So ordered.