Connecticut River Lumber Co. v. Brown

• Decision Date: 25 April 1896
• Parties: CONNECTICUT RIVER LUMBER CO v. F. H. AND A. H. BROWN
• Court: Vermont Supreme Court

35 A. 56

68 Vt. 239

CONNECTICUT RIVER LUMBER CO v. F. H. AND A. H. BROWN

Supreme Court of Vermont

April 25, 1896

OCTOBER TERM, 1895.

Book account. Heard upon the report of an auditor at the June term, 1895, Caledonia county, START, J., presiding. Judgment for the defendants. The plaintiff excepts.

Judgment affirmed.

Dunnett & Slack for the plaintiff.

OPINION

THOMPSON

The plaintiff contracted with the defendants to deliver them a certain quantity of lumber, at an agreed price, on board the cars at Bellows Falls, Vt. This suit is brought to recover the balance claimed to be due for lumber delivered under this contract. The defendants claimed that some of the lumber was not such as was required by the contract, in respect to quality and the manner in which it was sawed. They also claimed that they were damaged by reason of the failure of the plaintiff to deliver lumber within the time agreed. These claims were controverted by the plaintiff. The last car load of lumber was shipped to the defendants June 24, 1880, and there was then due the plaintiff at the contract price, as it claimed, $ 1,265.94. The defendants claimed there was not so much due from them. The parties being unable to settle, the matter drifted along until the 20th of August following, when the plaintiff by letter informed defendants that their bill must be settled at once or the same would be put into the hands of an attorney for collection. On receipt of this letter, August 21, the defendants sent plaintiff by mail, a check for $ 1,014.35 enclosed in a letter from them, of that date, in which among other things they wrote: "We send you enclosed our check for ten hundred fourteen dollars and 35100 ($ 1,014.35) in full settlement of all demands to date. If this is refused by you we shall make the tender in a legal way." The plaintiff received this letter and check in due course of mail, and collected the check in due course of business, and gave the defendants credit for the same on the amount it claimed to be due it for the lumber.

The plaintiff contends that the defendants had accepted the lumber so that they were precluded from setting up defects in it as a defense and that as the price was fixed by the terms of the contract, the sum due was certain and liquidated, and that, therefore, there was no legal ground for a compromise and that the amount paid, under the circumstances disclosed only extinguished defendants' debt pro...