Berger v. Quintero
| Decision Date | 05 March 1930 |
| Docket Number | 29548 |
| Citation | 170 La. 37,127 So. 356 |
| Court | Louisiana Supreme Court |
| Parties | BERGER v. QUINTERO |
Appeal from Civil District Court, Parish of Orleans; Walter L Gleason, Judge.
Action by Otto Berger against J. Marshall Quintero. Judgment for defendant, and plaintiff appeals. During pendency of the appeal, plaintiff died, and his widow was made party plaintiff in his stead.
Judgment affirmed.
Richard A. Dowling, of New Orleans, for appellant.
Delvaille H. Theard, of New Orleans, for appellee.
This is a suit for $ 5,354.12, paid to defendant, as plaintiff's attorney, by Emile Pomes, notary public, in a partition of the effects of the succession of plaintiff's mother, Anna C Czarnowski, widow of Peter St. Amand. The validity of the payment, made by the notary to defendant, was recognized by this court in the Succession of Czarnowski, 158 La. 1093, 105 So. 76.
On the day that defendant received the foregoing amount from the notary, he made out an itemized statement of the amount which he considered due the firm, of which he was a member, for legal services rendered in matters involving considerable property, and for costs expended on plaintiff's behalf, showing a balance due plaintiff of $ 1,107.62, and mailed the statement to him with his check for the amount of this balance, and accompanied this remittance with a letter stating that the check was for the balance due plaintiff, appearing on the statement inclosed. Plaintiff, alleged that he never accepted this check, nor approved of the settlement offered, and prayed for a trial by jury, which was granted.
Defendant answered the suit, averring that the amount remitted was the correct balance due, and pleading that, as defendant caused the check to be certified by the bank on which it was drawn, he thereby accepted it, and that, as the check was sent him with the declaration that it was in settlement of the balance due, he thereby accepted it in full settlement of that balance.
The uncontradicted evidence shows that, notwithstanding plaintiff's protests, he retained the check for three years, then caused it to be certified by the bank; and then kept it for some time, when, still retaining it, he brought the present suit.
The plea of estoppel was sustained by the trial judge, the suit dismissed, and the jury discharged.
Under section 187 of the Negotiable Instruments Law (Act 64 of 1904), "Where a check is certified by the bank on which it is drawn, the certificate is equivalent to an acceptance," and under section 188 thereof "Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon." Therefore, the situation is the same as between plaintiff and defendant, as if the check had been presented for payment and had been paid.
The plea of estoppel, in our view, is well founded. The claim was a disputed one. If plaintiff was not satisfied with the settlement tendered, he should not have retained the check and caused it to be certified by the bank upon which it was drawn, but should have returned it, in the absence of a waiver of the condition attached to the remittance. By retaining the check, and causing it to be certified, he is now precluded from...
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Johnson v. Mansfield Hardwood Lumber Company
......In support of that position it cites and relies on Meyers v. Acme Homestead Association, 18 La.App. 697, 138 So. 443, and Berger v. Quintero, 170 La. 37, 38, 127 So. 356. In each of those cases, as we appreciate the facts thereof, there accompanies the delivered check a written ......
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McClelland v. Security Indus. Ins. Co.
...common law concept judicially incorporated in Louisiana jurisprudence and is grounded on basic contractual principles. Berger v. Quintero, 170 La. 37, 127 So. 356 (1930); Charles X. Miller, Inc. v. Oak Builders, Inc., supra. 4 It is hornbook contract law that the courts are bound to give le......
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Fischbach and Moore, Inc. v. Cajun Elec. Power Co-op., Inc.
...in payment of a greater disputed claim, was incorporated into the law of Louisiana by the Supreme Court of Louisiana in Berger v. Quintero, 170 La. 37, 127 So. 356 (1930). 1 An accord and satisfaction is a contract, albeit a special kind, terminating a dispute between the parties over oblig......
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Amos v. Waggoner
...... Berger v. Quintero, 170 La. 37, 127 So. 356. Accordingly, were defendant resisting plaintiff's demand on the ground that the agreement had been previously ......