Continental Ins. Co. v. Weinstein
| Decision Date | 26 June 1953 |
| Parties | CONTINENTAL INS. CO. v. WEINSTEIN et al. |
| Court | Tennessee Court of Appeals |
Thos. G. Watkins, Henry C. McCall, Jr., Nashville, for complainant.
Elkin Garfinkle, Nashville, for defendants.
This is a suit by the Continental Insurance Company of New York against Paul B. Weinstein and Mrs. Lena Weinstein, doing business under the name of Weinstein & Son, seeking to collect the sum of $2,536.56 and interest, for the loss of some diamonds sent to the defendants on consignment by Alexander Wolf and Leo Wolf, dealers in New York City. The diamonds were turned over by the defendants to the Express Company at Nashville, to be conveyed to the Wolfs in New York and were lost or not delivered. The complainant had insured the diamonds and alleged that it had paid the Wolfs for their loss claiming that by reason of the payment and the terms of the insurance policy issued to the Wolfs it became subrogated to their rights in the transaction.
The defendants filed an answer denying the material allegations of the bill.
The case was heard by the Chancellor who filed a written finding of facts and opinion in which some of the questions raised were decided in favor of the complainant, and then held that the defendants having sent the Wolfs a check for an amount owing by them for diamonds which they kept, and having written in the face of the check 'In full settlement of all claims', the complainant could not recover and the bill was dismissed.
The complainant has appealed to this Court and has assigned errors.
Therefore the questions for determination here are: Does the acceptance and receipt of the check for $1,285.25 on the face of which is written 'In full settlement of all claims', by the Wolfs, with full knowledge that the check was so sent, amount to a release of the disputed indebtedness and does the complainant Insurance Company have any higher or superior rights than the Wolfs, when the defendants were not informed of the payment of the insurance to the Wolfs at the time of the settlement.
In connection with these questions the Chancellor found the facts as follows:
'After it became apparent that the stones in question were lost by the Railway Express Agency, Wolf & Company wrote the following letter to defendants on January 8, 1948:
"Weinstein & Son
237 4th Ave.
Nashville, Tenn.
'The record does not reveal that a reply was made to this letter and the next letter between the parties was dated January 29, 1948, from attorneys for Wolf & Company to the defendants, which is as follows:
"Weinstein & Son
237 4th Avenue
Nashville, Tenn.
/s/ Rein, Mount & Cotton.'
"JJT:ml
'On the same day the above letter was written, to-wit: January 29, 1948, the complainant, Insurance Company herein, by check bearing the same date and in the amount of $2536.50 paid to Wolf & Company the amount of loss sustained as a result of the Express Agency losing the diamonds, which the defendants had undertaken to return under the consignment agreement. This payment was made pursuant to a proof of loss claim filed with the complainant by the insured dated January 8, 1948, the date of the first above mentioned letter between the consignors and the consignees.
'The defendants, Weinstein, subsequently remitted their check dated February 5, 1948, to Alex and Leo Wolf in the amount of $1285.25, which was the purchase price of the diamonds retained by the Weinsteins. This check contained the notation 'In full settlement of all claims', and it was deposited by Wolf & Company on, or about February 6, 1948.
The Chancellor then disposed of the case as follows:
'The unreported case of H. H. Pike, Co., Inc. v. American Tea & Coffee Co., decided by the Court of Appeals at Nashville, on March 14, 1936, is relied upon by the defendants. The facts of the Pike case are peculiarly similar to the facts of the case at bar. In holding that the defendants were released, the Court, speaking through Judge DeWitt, states the rule as follows:
"The law is well settled in this State and it is in accord with the great weight of authority elsewhere, that when a creditor accepts from his debtor a check containing a statement that it is in full satisfaction of his account, although for less than the amount demanded, it operates as an accord and satisfaction--the compromise being a good consideration, so that a new consideration otherwise is not necessary.'
'The Court goes on to further hold that such a release prevails even though there are several claims in dispute.
'This Court is of the opinion that the above cited case is controlling, and that the acceptance of the check on the part of Wolf & Company constituted a release of any and all claims...
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