T. M. Partridge Lumber Co. v. Phelps-Burruss Lumber & Coal Co.

Reese, C. J. This action was commenced before a justice of tbe peace. The amount of plaintiffs claim is $95.60. Tbe case was appealed to tbe district court, where a trial was had to the court which resulted in a finding that there had been an accord and satisfaction, and a judgment dismissing the case. Plaintiff appeals to this court. The action is founded upon the sale of a car-load of cedar telephone poles, the price of which was $570.30 delivered in Lincoln. Defendant paid $150.80 freight charges, and remitted $323.90, making a total of $474.70. One of the principal issues presented by the pleadings was whether there had been an accord and satisfaction of the demand. The correspondence between the parties shows that the poles were warranted to be up to certain specifications as to size and quality, that plaintiff insisted upon an inspection before shipment, and defendant insisted upon inspection at the point of delivery. The poles were* shipped, and upon their arrival in Lincoln they were inspected and some were rejected. There was a dispute as to the right of defendant to inspect the poles at Lincoln and also as to the quality of the poles shipped. On January 11, 1908, defendant sent plaintiff a check for $323.90, accompanied by the following letter: “Inclosed herewith find check for $323.90 from the Phelps-Burruss Lbr. & Coal Co. in settlement with the Nebraska Telephone Co. for car of white cedar poles which you shipped in car M. & I. No. 1327. “53 7" top 25' white cedar poles (a) $2.63.......$139.39 34 7" “ 35' “ “ “ “ 8.25.......$280.50 3 6" “ 20' “ “ “ “ 1.38.......$ 4.14 9 7" “ 30' “ “ “ “ 5.63.......$ 50.67 $474.70 Less freight .......................... $150.80 $323.90 [398] “Tbe following is a list of tbe poles rejected and are here on band subject to your order: “4 — 7" top 25' white cedar poles. 7_7// “ 35' íí u u “Tbe aboye rejected poles are all dead timber as per report made by tbe Nebraska Telephone Co., and are therefore worthless as telephone poles, and are not admissible by the Northwestern Cedarmen’s Association grading rules. (Signed.) “P. S. The above rejected poles are here in-the PhelpsBurruss Lbr. yard subject to your inspect and order.” The check was received and the money retained by plaintiff, but a letter was sent defendant saying that it was not received in full payment, but on account, and that an inspection of the rejected poles would have to be made by an officer of the association of^ which plaintiff appears to have been a member. An inspector came from Des Moines, looked over the rejected poles and reported to plaintiff, but the report was not entirely satisfactory owing to there being some poles upon which the brand or hammer mark of plaintiff did not appear. It cannot be fairly contended, we think, that plaintiff did not understand that the $323.90 was sent in full satisfaction of all demands. If so, one of two courses was open to it — either retain the money as a full satisfaction, or return the check and sue for the whole amount claimed to be due. It chose the former course. Having retained the money, the stated purpose of the sender would control. In Chicago, R. I. & P. R. Co. v. Buckstaff, 65 Neb. 334, we said, that if there was a disputed account, “and the defendant tendered a less amount in full settlement and discharge of the entire claim, and defendant (plaintiff?) accepted the money with the knowledge that it was so paid, the dispute is a sufficient consideration to uphold the settlement and will bar a recovery.” • In Treat v. Price, 47 Neb. 875, we said: “When money is offered on condition that it be accepted in full satisfaction of a demand, the person receiving it, if he receives [399] it at all, must take it subject to tlie condition named. His acceptance of the money under suck a tender is an acceptance of the condition, notwithstanding any protest that he may at that time or afterwards make to the contrary.” The decision of the district court is supported by sufficient evidence, and the judgment is Affirmed.