Duluth Chamber of Commerce v. Knowlton

• Decision Date: 24 December 1889
• Citation: 44 N.W. 2,42 Minn. 229
• Parties: DULUTH CHAMBER OF COMMERCE v KNOWLTON ET AL.
• Court: Minnesota Supreme Court

42 Minn. 229

44 N.W. 2

DULUTH CHAMBER OF COMMERCEvKNOWLTON ET AL.

Supreme Court of Minnesota.

Dec. 24, 1889.

(Syllabus by the Court.)

1. The payment of a part of a debt or demand will in no case discharge the whole without a release of the residue. To constitute an accord and satisfaction, the payment must have been accepted as such. The mere retention by the creditor of money to which he is entitled absolutely will not amount to an accord and satisfaction, although tendered or transmitted to him as payment in full of the demand.

2. If, when the evidence on both sides is closed, plaintiff is entitled, as a matter of law, to a verdict, the proper practice is to request the court to direct a verdict in his favor; but to order judgment, instead of directing a verdict, is, at most, an irregularity without prejudice, and no ground for a new trial.

Appeal from district court, St. Louis county; HOLLAND, Judge.

S. D. Allen and C. M. Parkhurst, for appellants.

Snively & Craig and H. F. Greene, for respondent.

MITCHELL, J.

It being desired that the Chamber of Commerce of Duluth might secure the services of Prof. W. F. Phelps, and organize a bureau to develop manufacturing in Duluth, to defray the expenses of which it was contemplated to secure the passage of an act by the legislature authorizing the raising of a fund by taxation, but this being a matter in the future, a subscription paper was circulated and signed by a large number of citizens of Duluth, including the defendants, as follows: “For the purposes of securing the services of Prof. W. F. Phelps, and organizing a force to develop manufacturing at Duluth, we, the undersigned, hereby subscribe the amount set opposite our respective names, and agree to and with each other, and to and with said Chamber of Commerce of Duluth, that we will pay such sum to the treasurer of said chamber of commerce, on demand, in each of the years 1887, 1888, and 1889. It is understood that, in case a fund for the above purpose is realized from taxation under a law to be hereafter passed by the legislature of Minnesota, the subscribers hereto shall be called upon only for the deficiency not realized under such law.” The sum set opposite the name of each subscriber was $250. Immediately after the guaranty subscription, and in reliance upon it, the chamber of commerce contracted with Prof. Phelps for his services for three years, at an average annual salary of $5,000, payable in monthly installments. The contemplated law for raising the money to pay this expense by taxation was passed, (Sp. Laws 1887, c. 321,) but, owing to the refusal of the city council to levy a tax, nothing was ever realized under it; and the chamber of commerce from time to time made what they called “assessments” on the subscribers to the guaranty fund in order to meet Prof. Phelps' salary and other expenses. On the 6th of June, 1887, they called on each subscriber for a payment of $50 on their subscription; on October 3, 1887, for another, of $100; and on March 6, 1888, for a third, of $50. The only payment ever made by defendants was one of $50, August 12, 1887, by check sent by mail to the treasurer of the chamber of commerce, on which the money was obtained and retained. This check, drawn by defendants on their bankers, read: “Pay to the chamber of commerce on...