Martin v. Treat

Park, J. We think it is clear that if the plaintiff ever had any cause of action against the defendant it was settled at the time of the transaction. The plaintiff admits that . when he delivered the horse and carriage to the defendant at [102] the stables of the Atlantic Hotel, the defendant gave him a roll of money, saying, “Here is something for what you have done,” and that he took the money without any objection. He knew that the defendant intended the money as payment for the service he had rendered. This is evident, not only from the language used by the defendant when tlie money was presented to the plaintiff, but also from the fact that the defendant had just been paying Edwards his stable bill for keeping the horse, and White his bill for services rendered, and other expenses concerning the property. The plaintiff had bound himself as surety for the payment of these bills, and they had just been paid in his presence when the money was presented to him. He therefore knew that the defendant intended then and there to settle all bills concerning the property, and that the money presented to him was given as a full satisfaction for the service he had rendered. He received it without examination or objection, and clearly took it in payment of his claim, whatever the amount might be. The amount was not large ; not so large as it ought to have been under the circumstances; but small as it was it was sufficient to cancel the plaintiff’s claim, if received, in satisfaction of it. The whole conduct of the plaintiff clearly shows that it was so received, and we therefore think there was' no error in the decision of the Superior Court in refusing to set aside the non-suit. * In this opinion the other judges concurred.