Hanley v. Noyes

Mitchell, J. We are compelled to the conclusion that the finding of the court that the settlement between the parties did not include the items of $54.83 and $3'3 is contrary to the undisputed evidence. The instrument “F” executed by plaintiff on the settlement, whether considered a receipt or a contract, is, in any view of the ease, prima facie evidence that every claim for “special” or extra work was included. Plaintiff offered no evidence in explanation of this settlement, and there is nothing to show that it was not just as the writing states — “of all special work done on defendant’s house, ” and “in full of all claims to date.” Plaintiff, however, contends that the amount agreed on at this settlement not having been paid in full, it was a case of an unexecuted accord, or an accord without satisfaction, and therefore no bar to a suit on the original claim, just as if no settlement had ever been made. The facts are that plaintiff had an unliquidated and disputed claim against defendant for some $1,500 for alleged “extra” work on his house. The parties, by way of settlement and compromise, liquidated it at $800, which both agreed and assented to as the 176 amount due plaintiff from defendant. Of this amount defendant has paid $785. This was a case of an account stated, constituting a. valid contract. There was a statement or liquidation of a disputed account by compromise, constituting an obligatory agreement between the parties. There was a promise by defendant, (to pay $800,) founded on a good consideration, (liquidating a disputed claim,) accepted and assented to by plaintiff, and hence constituting a valid contract, whether the amount was paid or not. Both parties were bound by it. If not performed, the plaintiff had a present legal remedy for its enforcement, and his only remedy is on this contract to recover the amount as thus liquidated, which, in the absence of' fraud or mistake, is conclusive upon both parties as to the amount, due. See Babcock v. Hawkins, 23 Vt. 561. Judgment reversed, and new trial ordered.