United States Bobbin & Shuttle Co. v. Thissell

• Decision Date: 03 November 1904
• Docket Number: 522.
• Citation: 137 F. 1
• Parties: UNITED STATES BOBBIN & SHUTTLE CO. v. THISSELL. [1]
• Court: U.S. Court of Appeals — First Circuit

137 F. 1

UNITED STATES BOBBIN & SHUTTLE CO. v. THISSELL. ^[1]

No. 522.

United States Court of Appeals, First Circuit.

November 3, 1904

William M. Richardson, Cyrus M. Van Slyck, and Van Slyck & Mumford for plaintiff in error.

Warren Ozro Kyle, for defendant in error.

Before COLT, Circuit Judge, and BROWN and LOWELL, District Judges.

LOWELL District Judge.

This is an action at law to recover the balance of wages due upon an account annexed. The jury returned a verdict for the plaintiff, and the defendant's exceptions are before us. We need consider but one question.

The plaintiff was in the defendant's employ at a rate of wages in dispute between the plaintiff and the defendant. The defendant admitted that it owed the plaintiff a certain sum. The plaintiff contended that the debt was larger. Under these circumstances the defendant wrote the plaintiff as follows:

'Dear Sir: Referring to yours of the 17th, calling our attention that you had not drawn full amount of salary at hand. We are enclosing statement made up by our bookkeeper, and he understands you have drawn only thirty dollars ($30.00) per week since September 1st, 1900. We are also enclosing our check #6151, payable to your order for four hundred sixty-four dollars and twenty-two cents ($464.22) which is in full settlement for balance of your salary up to and including September 7th 1901. Unless you find above correct you will return our check and statement. In future you will please draw full amount due you weekly.'

An account was inclosed, and a receipt as follows: '$464.22 Check No. 6151 No.... .

'Received from U.S. Bobbin & Shuttle Co., Four hundred & sixty-four 22/100 Dollars, being balance of salary due to and including week ending Sept. 7, 1901, as per statement rendered.'

To this the plaintiff replied as follows:

'Dear Sir: Your several communications of the 20th inst. with two checks, respectively for $464.22 & $376.71, are received. I have deposited the checks. When I have time and opportunity affords the privilege, I will examine the communications and if found correct, they shall receive proper attention.'

The receipt was neither signed nor returned.

The defendant moved that the jury be instructed to return a verdict for the defendant on the grounds:

'(5) That it appears that there was an accord and satisfaction of plaintiff's claim to September 7, 1901, and that from said September 7, 1901, the rate was fixed by the then acceptance of the check sent to plaintiff September 20, 1901, at $1,800 a year, and that plaintiff has been fully paid at said rate.

'(6) That on the whole testimony the jury should be instructed to return a verdict for the defendant.'

This motion was refused, and the defendant thereupon requested the following instructions:

'(5) That the plaintiff, by accepting and cashing the check inclosed in the letter of September 20, 1901, from the treasurer of the defendant corporation to him, and in which was also inclosed the statement showing that the wages or salary of the plaintiff were computed at the rate of eighteen hundred dollars ($1,800) per year from October 11, 1899, became entitled to be paid thereafter for his services at the rate of only eighteen hundred dollars per year.'

'(7) That the acceptance and cashing of the check sent to the plaintiff in the letter to him of September 20, 1901, from the treasurer of the defendant corporation, with the acts of the parties was an accord and satisfaction of the claim of the plaintiff against the defendant for salary from the time when he commenced working for the defendant corporation, down to September 7, 1901.

'(8) That on all evidence in the case the plaintiff is not entitled to recover, and the verdict must be for the defendant.'

These requests were refused by the learned judge, who charged the jury:

'(3) That it was for the jury to determine whether the correspondence of September 20 and 21, 1901, and the acts of the parties thereunder,...