Alden v. Thurber

• Decision Date: 11 May 1889
• Citation: 21 N.E. 312,149 Mass. 271
• Parties: ALDEN v. THURBER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 271

21 N.E. 312

ALDEN v. THURBER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 11, 1889

COUNSEL

E. Avery, C.Q. Tirrell, and N.H. Pratt, for plaintiff.

A Hemenway, for defendants.

OPINION

MORTON C.J.

The defendants agreed to sell to the plaintiff about 10,000 pounds of pure raspberry jam. They sent the jam to the plaintiff at Boston, and he remitted to them $1,000 in part payment of the agreed price. After the receipt of the jam the plaintiff found and claimed that it was not pure raspberry jam, such as the contract called for. Some correspondence ensued between the parties, and on January 22, 1883, the defendants wrote to the plaintiff as follows: "I regret very much your dissatisfaction about that lot of raspberry jam. Having seen the attorney's letter, I spoke to Mr H.K. Thurber about it, and, after discussing the matter, he desires me to say that, notwithstanding the fact that Mr Chase insists that the goods were like the sample, he is willing to receive the whole lot back, and credit it up to you, together with all freight charges, and in this way settle the matter, as we do not care to lose your trade, and we always desire to give our customers satisfaction. Advise us when and how you ship the jam." Upon the receipt of this letter, the plaintiff sent back the jam, except one keg, which had been sold, and requested the defendants to "remit our money at once." The defendants thereupon credited the plaintiff with the jam returned, and the expenses of freight and cartage, and remitted to the plaintiff the balance of the $1,000 due him. This was a mutual rescission of the contract. The letter of the defendants was an offer to settle and compromise the controversy between the parties. The acts and conduct of the plaintiff was an acceptance of that offer. This was a waiver of the right to sue for any preceding breach of the contract. The performance by the defendants of the new agreement operated as an accord and satisfaction for any breach, and discharged the old contract. Such was clearly the intention of the defendants, and as the plaintiff accepted their offer unconditionally, and thus induced them to perform it, he cannot now say that he had a concealed intention not to discharge the prior breaches of the contract. This would be bad faith. Rogers v. Rogers, 139 Mass. 440, 1 N.E. 122. For these reasons we are of opinion that the superior court rightly directed a...