Lapp v. Smith

Mr. Justice Boggs delivered the opinion of the court: Though the items of appellees’ claim were not disputed, yet a set-off was asserted, and that the demand had become and was a matured liability was denied. The amount of the appellees’ claim being in dispute and that it was due being denied, it was an unliquidated demand. (Ostrander v. Scott, 161 Ill. 339.) The letter written by appellants was an offer to adjust the differences between the parties by the substitution of the check and the three notes for the appellees’ claim or demand and in satisfaction thereof. It was so understood by appellees, who replied that such an arrangement was not satisfactory to them. The offer was indivisible, covered the whole claim, was clearly to be accepted as an entirety in satisfaction of the whole claim or rejected as a whole. If accepted it would constitute a bar to a right of action on the demand. (1 Beach on Contracts, secs. 441, 442; White v. Jones, 38 Ill. 169; Rayburn v. Day, 27 id. 46.) The check was not tendered as a payment upon the original claim, but it and the notes were offered together for acceptance, as in compliance with a proposed new undertaking and agreement then submitted for acceptance in discharge of the unliquidated and disputed claim. The appellees were called upon to accept the proposition as an entirety as made, or reject it in toto. Ostrander v. Scott, supra; 1 Beach on Contracts, secs. 51, 52; McDaniels v. Bank, 29 Vt. 230; Fuller v. Kemp, 138 N. Y. 238. The position of appellees is, that they rejected the proposal and the right of action on their demand remained unimpaired, the appellants being entitled to elect whether they would institute appropriate action to recover the check, or the amount thereof, or demand a credit therefor on the original cla,im. This view seems to have been accepted by the trial court, and erroneously so, as we think. The check was tendered on condition it, and the notes which accompanied it, should be accepted in satisfaction of the unliquidated disputed claim. The acceptance and retention of the check involved the acceptance of the condition upon which it was offered, and the law will not permit the appellees to escape that conclusion so long as they retain the check. Ostrander v. Scott, supra, exemplifies this doctrine. In that case appellants enclosed by mail to appellees a check, and in an accompanying letter advised them the check was tendered in settlement of the account in full and should be so accepted or returned. Appellees (in that case) replied that they retained the check as a payment in the amount thereof, and demanded remittance of the balance of such account. The doctrine of the case is that the legal effect of the act of retaining the check was an acceptance of the same on the conditions upon which it was tendered. In Fuller v. Kemp, 138 N. Y. 238, which involved the same principle, it was said: “The tender and the condition could not be dissevered. The one could not be taken and the other rejected. The acceptance of the money involved the acceptance of the condition, and the law will not permit any other inference to be drawn from the transaction. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can affect the legal quality of this act.” And in McDaniels v. Bank, 29 Vt. 230, the court said: “When a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and he attaches to his offer the condition that the same, if taken at all, must be received in full satisfaction of the claim in dispute, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction. * * * The mere act of receiving the money is an agreement to accept the same on the conditions upon which it was offered.” The doctrine of these cases is applicable here. The instructions asked the court to declare it to the jury, and we think the court erred in refusing to do so. The judgment of the Branch Appellate Court and that of the superior court are reversed and the cause remanded. Reversed and remanded.