Colby Cheese Box Co. v. Laabs

• Decision Date: 10 March 1925
• Citation: 202 N.W. 795,186 Wis. 358
• Parties: COLBY CHEESE BOX CO. v. LAABS.
• Court: Wisconsin Supreme Court

186 Wis. 358

202 N.W. 795

COLBY CHEESE BOX CO.

v.LAABS.

Supreme Court of Wisconsin.

March 10, 1925.

Appeal from Circuit Court, Clark County; Emery W. Crosby, Judge.

Action by the Colby Cheese Box Company against E. A. Laabs. Judgment for defendant, and plaintiff appeals. Reversed, with instructions.Pors, Edwards & Pors, of Marshfield, for appellant.

Morse & Fellenz, of Fond du Lac, for respondent.

JONES, J.

In this action the complaint consisted of two counts. In the first it is alleged that on the 19th of January, 1924, at Marshfield, Wis., an account was stated between the plaintiff and the defendant upon which a balance of $415.50 was found to be due from the defendant to the plaintiff, which the defendant then agreed to pay, but that no part thereof has been paid. In the second count it is alleged that the plaintiff was engaged in the business of manufacturing and selling cheese boxes, and that the defendant was a cheese maker doing business in Clark county, Wis.; that during the year 1923 the plaintiff sold and delivered to the defendant, under a written contract, quantities of cheese boxes; that there was a dispute between the parties in January, 1924, as to the amount due the plaintiff, and that a compromise and settlement were arrived at under which the defendant executed and delivered his check to the plaintiff for the sum of $415.50, which the plaintiff accepted in full settlement, and which has been duly presented for payment, but no part thereof has been paid.

In January, 1924, the defendant was called to the plaintiff's office where the officers of the plaintiff company asserted that he owed the plaintiff $415.50, and read from certain letters and documents with reference to the contract for the boxes furnished in 1923. The defendant, after some discussion, handed the plaintiff's officer a check for the amount claimed, but upon returning to his office stopped payment on the check.

At the trial the plaintiff claimed that the amount demanded was a compromise reached after the plaintiff's officers had shown the defendant their claim for an increased price on the boxes furnished to others by reason of the increase of the market price over that which the plaintiff had agreed to sell to the defendant; that the only question properly before the court was the existence of this compromise agreement made at this time, and that all the details of the 1923 agreement were irrelevant. The defendant claimed that the transaction was an unexecuted satisfaction and accord, and that the details of the 1923 agreement were relevant, and that there was no consideration for the agreement claimed by the plaintiff.

The agreement seems to have been based on certain letters. In a letter dated January 18, 1923, the defendant wrote asking for the prices on certain kinds of boxes. On January 19, 1923, the plaintiff wrote giving the prices. On January 24, 1923, the defendant wrote authorizing delivery of certain boxes, and the letter continued, “I want to contract for my cheese boxes for what I need this year, at present price of boxes delivered.” The letter then stated the number of boxes used by the defendant in the year 1922. On January 26, 1923, the plaintiff replied stating that they would send another load of boxes and adding, “In regard to the balance of boxes you may need as outlined in your letter of the 24th of January, 1923, we are willing to book your order for these boxes and will book you accordingly.” On January 30, 1923, the defendant wrote stating, “You may book for me the following boxes at present prices delivered as I order them by loads.” The letter continued, describing the number of boxes, calling for 11,000. On January 31, 1923, the plaintiff replied as follows, “We acknowledge receipt of your order of January, 30th. We have booked you for these boxes as agreed to in our former letter. If you should happen to need more of one kind and less of another kind it will be agreeable to us.” The court submitted one question which with the answer was as follows:

“Was it agreed between the plaintiff and the defendant at the office of the Colby Cheese Box Company on the 19th day of January, 1924, that the defendant, E. A. Laabs, owed the plaintiff, the Colby Cheese Box Company, the sum of $415.50 as a final and complete settlement between the parties? Answer: No.”

On this answer the court entered judgment for the defendant.

[1][2][3] The court gave the following instructions:

“You are instructed that this question is what is known in law terms as an accord and satisfaction. The court will give you the definition of accord and satisfaction. An accord and satisfaction is an agreement between two parties to give and accept something in a satisfaction of a right of action, which one has against the other, and which, when performed, is a bar to actions on this account.”

The plaintiff's counsel do not object to this charge except on the ground that it had no application to the facts. This objection seems well taken. The defendant gave a check but on the same day repudiated it. As stated in an early case in this court:

“It is a general rule, that an accord which has not been followed by satisfaction is no bar to an action.” Palmer v. Yager, 20 Wis. 91.

Although performance is necessary to a complete accord and satisfaction, this is not essential to a valid compromise. 12 C. J. 337; 5 R. C. L. 894; Palmer v. Yager, 20 Wis. 91. Although there are exceptions to the rule that performance is necessary to accord and satisfaction, none of them apply to such a situation as appears in this case. See collection of cases in note of 20 L. R. A. 785.

[4] The court also instructed the jury as to the essentials of a compromise. If the instructions on this subject had been free from error, the charge relating to accord and satisfaction might not have been prejudicial error. The court in this part of the charge correctly stated the elements necessary to a valid agreement, and then used this language:

“But if the jury find from the evidence that the plaintiff knowingly, and with intent to deceive and coerce the defendant into accepting said settlement, made false and fraudulent...