Schumacher v. Moffitt

Opinion by Mr. Chief Justice McBride. 1. It is contended by the defendant that the plaintiff, by accepting and cashing the check for $75 with the words “In full settlement of account to date” written upon it, is estopped from claiming that there has not been a full accord and satisfaction of his claim. Where a claim is unliquidated, this is undoubtedly the law: See Andrews v. Haller Wall Paper Co., 32 App. D. C. 392, as reported in 16 Ann. Cas., p. 192, the notes to which case cover nearly every phase of this subject; also Fuller v. Kemp, 138 N. Y. 231 (33 N. E. 1031, 20 L. R. A. 785), and notes. The law is otherwise where a demand has been liquidated, and it is now settled by the great weight of authority' that an acceptance of a lesser amount than that actually agreed to be due upon [83] a liquidated demand is not a good accord and satisfaction: 1 Cyc. 319, and cases there cited. 2. It will he observed that the evidence of plaintiff as to the alleged settlement is not clear. It is true he says that they discussed the matter and compared items in the evening, and that they finally got their figures to correspond, and agreed that $157.50 was the amount due; but next morning found them threshing the matter over again, defendant first offering plaintiff $50, $75, and then $100, and finally proposing to give him a check for $75 and to. arbitrate the balance, which offer plaintiff declined. Under these circumstances the court properly submitted to the jury the question as to whether any positive agreement had been reached by the parties as to the amount due. 3. The instruction quoted in the statement was erroneous. If the claim was unliquidated and the plaintiff accepted and cashed the check with the words “In full settlement of account to date” written upon it, it does not matter whether he understood the legal effect of his act or not, or what his intent was when he cashed the cheek. The legal effect of his act was to satisfy his demand. It was not necessary that he should have understood that the effect of the language used would be to estop him from urging payment of an additional amount. 4. The verdict was irregular, but the intent of the jury can be deduced from it, and, in the absence of any objection at the time of its rendition, it was sufficient; but, being based on an erroneous direction as to the law, it cannot be accepted as a correct finding of facts. The judgment will be reversed, and a new trial directed. Beversed and Bemanded.