Aronson v. Pailet

• Decision Date: 19 April 1937
• Docket Number: 16597
• Citation: 173 So. 545
• Court: Court of Appeal of Louisiana — District of US
• Parties: ARONSON v. PAILET

173 So. 545

ARONSON v. PAILET

No. 16597

Court of Appeal of Louisiana, Orleans.

April 19, 1937

Herman L. Midlo, of New Orleans, for appellant.

Edw Dinkelspiel, of New Orleans, for appellee.

OPINION

JANVIER Judge.

Al Pailet is a duly licensed and authorized auctioneer. Abe Aronson employed him to conduct an auction of certain merchandise belonging to Aronson. An agreement was reached as to the rate of compensation to which Pailet would be entitled and as to the expenses which should be incurred. Before the time of the sale Pailet sought and obtained from Aronson permission to include certain other articles belonging to other customers and apparently an agreement was reached concerning the proportion of expense with which the owners of these other articles should be charged. About three days after the sale Aronson received from Pailet a statement purporting to have been prepared at the conclusion of the sale showing that the goods sold for Aronson had produced gross proceeds amounting to $ 1,158.23, and, without setting forth all of the expenses, stating that a commission of 10 per cent. would be charged and that 50 per cent. of the advertising cost and certain other costs would be charged against Aronson. The net balance due to Aronson was not shown, nor did a remittance accompany the statement.

Aronson states that when he received the statement he was surprised to see that the commission had been fixed by Pailet at 10 per cent., since, so he contends, it had been agreed that the commission would be only 5 per cent. He testifies that he attempted to see Pailet to complain, "going to see him four or five times a day," but that "he was never in the office. (3)5C" He also says that four days later he received a second statement from Pailet in which again a commission of 10 per cent. was shown and which also set forth certain items of expense which had not appeared on the first statement. This second statement was accompanied by a check for $ 952.28 and by a letter which stated that the check represented the "amount due you in full settlement." Aronson testifies that when he received this check he tried again to see Pailet to complain. His statement as to his action on that day is as follows: "I went again to see him, and I was there all day long trying to see him and talk to him about it and he wasn't there, and I really got worried about my money, I thought he would never pay me, and I had the check with me, and about five minutes before the bank closed I went and deposited the check."

He then brought this suit, claiming that he had been overcharged by Pailet and that he should have received an additional sum of $ 108.77. Pailet pleaded estoppel, basing his plea on the fact that Aronson had accepted and used the check sent him as payment in full, and contending that, therefore, there had resulted a compromise, as the result of which plaintiff was estopped to claim any further balance.

In the trial court there was judgment for plaintiff for $ 104.29. Defendant has appealed.

Plaintiff maintains that there can be no estoppel because from the acceptance of the check defendant's position has not been prejudiced, since the amount represented by the check was admittedly due in any event. In support of this argument there are cited many decisions holding that there is no estoppel unless the party pleading estoppel has been lead into action which he would not otherwise have taken. That usually, where estoppel is relied on, this view prevails in this state, there can be no doubt. Farley v Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, L.R.A. 1915A, 200, Ann. Cas. 1915C, 717; McWilliams v. Geddes & Moss Und. & Emb. Co. (La.App.) 164 So. 144, 145; Maddox v. Robbert, 158 La. 394, 104 So. 183; Rembert v. Fenner & Beane, 173 So. 551, this court, decided April 5, 1937. But there has been established here, also, the doctrine that, when estoppel is said to result from the acceptance of an offer tendered in writing as full settlement of a disputed claim, the plea of estoppel will be sustained even though the amount tendered is admittedly due in any event. We so held in Meyers v. Acme Homestead Association, 18 La.App. 697, 138 So. 443, 447, and in Davis-Wood Lumber Company v. Farnsworth & Co., 171 So. 622, 627, feeling that we were controlled by the decision of the Supreme Court in Berger v. Quintero, 170 La. 37, 127 So. 356, 357. It is not necessary that we here repeat what was said in those cases. The arguments made on behalf of plaintiff here are found discussed there. Until the decision in the case of Berger v. Quintero came to our notice, we had always believed consideration to be necessary to a contract of compromise or transaction; that each party must yield something to the other, and, having been of that view, we found it difficult to see how there could be a binding contract of compromise where the consideration given by one party was something which he admitted that under all circumstances and in any event he was already liable for. In other words, if A admits that he owes B $ 100 and B claims that A also owes him an additional $ 50, we see no reason why A should be permitted to say to B, "unless you give me a full acquittance and discharge I will not pay you the $ 100.00 which I admit I owe you." That others shared this view is shown from a reading of the opinion of our brothers of the First Circuit in Coco v. Moss Company, 4 La.App. 645, in which is found the following: "Defendant contends that because its check to plaintiffs was accompanied by a statement on which was printed in red ink, that the check was remitted to cover the balance due, as per that statement, that it was therefore in full settlement, and that as plaintiffs accepted and collected the check, they are estopped from making further claim against defendant, and are bound by the settlement." The opinion, after referring to various legal digests, contained the following statement: " (3)5C the authors of these digests all agree, as being necessary to constitute an Accord and Satisfaction (3)5C that there must be some consideration, even if inadequate, for the validity of the contract. R. C.L., vol. 1, p. 183 Cyc. vol. 1, p. 311. The fact that upon part payment of a liquidated claim a written receipt in full is given by the creditor does not,...