Aydlett v. Brown

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J.
• Citation: Aydlett v. Brown, 153 N.C. 334, 69 S.E. 243 (N.C. 1910)
• Decision Date: 02 November 1910
• Parties: AYDLETT v. BROWN.

69 S.E. 243

153 N.C. 334

AYDLETT v. BROWN.

Supreme Court of North Carolina

November 2, 1910

Appeal from Superior Court, Pasquotank County; Ferguson, Judge.

Action by E. F. Aydlett against Andrew Brown. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a debtor sends a check in full payment of the debt, and the creditor receives and cashes it, he is bound by the condition annexed to the acceptance.

An attorney had two accounts against a client, one under a special contract, liability for which was denied, and the other consisting of several items, one of which was disputed by the client. At the request of the client, the attorney sent an itemized statement of the second account, and the client in response thereto sent a check for the amount thereof in a letter reciting that the check was sent in settlement of all accounts to date. There was nothing to show that the client had in mind at the time the first account. Held to justify a finding that the check was sent and accepted in settlement of the second account only.

This action was brought to recover $1,000, the amount due by the defendant for professional services alleged to have been rendered by the plaintiff as his attorney. There were two accounts, one for $1,000, which was presented and liability for the same or any part thereof denied by the defendant, and the other for $125, composed of several items, one of which was disputed. The defendant inclosed a check for $125 in a letter dated January 14, 1910, which contained the following statement: "Your favor of the 13th inst. with inclosures as stated, received, and contents noted, and I thank you for the same. I inclose check--$125--in settlement of all accounts which you have against me to this date. Kindly acknowledge receipt." At the request of the defendant the plaintiff inclosed an itemized statement of the account for $125 in his letter of January 13th, to which the defendant's letter of the 14th was a reply, and there was no reference in the letter of the 13th to any other account. The defendant, while not pleading accord and satisfaction or payment, or referring in his answer to the account for $1,000 as having been settled, contends that the collection of the check by the plaintiff is a bar to his recovery of the $1,000, or any part thereof, in this action. The court instructed the jury to find, from all the evidence, whether the letter of January 14, 1908, was intended by the parties to include the account for $1,000, upon which this action was brought, or only the transactions covered by the account for $125, which is made up of several items or accounts. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

A. O Gaylord, W. A. Worth, and N. T. M. Melliss, for appellant.

J. C B. Ehringhaus, W. M. Bond, Pruden & Pruden, J. H. Sawyer, and H. S. Ward, for appellee.

WALKER J.

We think, upon a consideration of the correspondence between the parties and the other evidence in the case, that this question was properly submitted to the jury. The court told them that, if the account for $1,000 was within the contemplation of the parties when the check was sent and received, the action would be barred by the receipt and collection of the check; otherwise it was not. If a check is sent in full payment of a debt, and the creditor receives and collects it, he is bound by the condition annexed to its acceptance. He will not be permitted to collect the check and repudiate the condition. Kerr v. Sanders, 122 N.C 635, 29 S.E. 943; Petit v. Woodlief, 115 N.C. 120, 20 S.E. 208; Cline v. Rudisill, 126 N.C. 525, 36 S.E. 36; Wittskowsky v. Baruch, 127 N.C. 315, 37 S.E. 449; Ore Co. v. Powers, 130 N.C. 152, 41 S.E. 6; Armstrong v. Lonon, 149 N.C. 434, 63 S.E. 101; Drewry v. Davis, 151 N.C. 295, 66 S.E. 139. In this case there were two separate and independent accounts, and there is evidence to show that the defendant, by the words of his letter, "in settlement of all accounts which you may have against me to this date," did not have in his mind, at the time, the account for $1,000, the amount the plaintiff claimed under a special contract, and liability for which the defendant had expressly denied, but only the account for $125. In Armstrong v. Lonon, supra, the court said, with reference to a similar point, which arose upon facts not any stronger than those presented in this case: "The check indicated on its face that it was sent in full payment to date thereof, and while this is not, under the circumstances of this case, conclusive, yet the receipt of it by the plaintiffs, their indorsement of it, and the retention of the money, is sufficient evidence to go to the jury that it was sent and received as a...