Fred F. Dow v. A. C. Cheney Piano Action Co.

• Decision Date: 04 May 1932
• Citation: 160 A. 274,104 Vt. 350
• Parties: FRED F. DOW v. A. C. CHENEY PIANO ACTION COMPANY
• Court: Vermont Supreme Court

160 A. 274

104 Vt. 350

FRED F. DOW v. A. C. CHENEY PIANO ACTION COMPANY

Supreme Court of Vermont

May 4, 1932

Special Term at Rutland, November, 1931.

Accord and Satisfaction---Pleading---G. L. 1791, subdv. II as Amended Laws 1921, No. 72-Estoppel by Course of Trial to Claim Defense Not in Case---Sufficiency of Facts To Support Defense of Accord and Satisfaction---Question of Law.

1. Accord and satisfaction must be specially pleaded, Practice Act, G. L. 1791, subdv. II, as amended by laws of 1921, No 72, not rendering such pleading unnecessary.

2. Plea held to contain essentials of plea of accord and satisfaction.

3. Where record shows that trial proceeded to its conclusion upon theory that accord and satisfaction was one of defenses relied upon, without any suggestion from plaintiff that defense was not properly in case, he cannot claim otherwise in Supreme Court.

4. Defense of accord and satisfaction held available over claim that amount due at time final payment was made and accepted was liquidated, or ascertainable by mere arithmetical computation, record showing that claim was neither liquidated, nor capable of being liquidated out of court, except by compromise.

5. If one who has disputed or unliquidated claim against another accepts and retains less amount than he claims is due, which is offered by other party in full settlement of such claim it operates as an accord and satisfaction of such claim, and further controversy respecting it is ended.

6. Where buyer sent check to seller in letter stating that it settled "account in full," claim then being unliquidated and disputed, and seller cashed check without protest, or any intimation that it was not accepted in full settlement until some days after check was received and cashed, held, that there was accord and satisfaction.

7. When evidence leaves no room for opposing inferences, question of accord and satisfaction is one of law.

ACTION OF CONTRACT. Plea, general issue, and special plea. Trial by court at the September Term, 1930, Rutland County, Buttles J., presiding. Judgment for the plaintiff. Both plaintiff and defendant excepted. The opinion states the case.

Judgment reversed, and judgment for defendant to recover its costs.

Marvelle C. Webber and Vernon J. Loveland for the plaintiff.

Lawrence, Stafford & O'Brien for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

SLACK

At the times here material, the plaintiff was a lumber dealer doing business in Belmont, Vermont, and the defendant was a piano manufacturer located in Castleton, New York. On January 20 1923, defendant gave plaintiff an order for four hundred thousand feet of No. 1 common and better hard maple to be delivered f. o. b., Castleton, New York, and eighty thousand feet of white birch to be delivered f. o. b. Brandon or Rutland, Vermont. The order contained these provisions: "The stock to be first class in every respect and equal to what we have been receiving. 3% discount 15 days from date of invoice. Shipping instructions to follow." Plaintiff accepted the order. The quantity of lumber thereby called for, except as modified by agreement of the parties, was furnished by plaintiff and accepted by defendant. Some of it was shipped on shipping instructions given by defendant, and some was shipped without such instructions. The plaintiff claimed, and still does, that defendant did not receive the lumber as fast as it was bound to by the terms of the contract, and that it deducted the 3% discount in instances where it had no right so to do. Both claims were, and are, denied by defendant. After all the lumber had been shipped and accepted by defendant and paid for as it claims, plaintiff brought this suit to recover, to quote from his specifications:

"(1). Discounts improperly deducted and interest thereon

$ 526.45

(2). Interest on delayed payment of invoices

436.99

(3). Damage for not taking deliveries by September 1, 1925

1,008.99"

The court below heard the case on the merits, and found for plaintiff to recover $ 1,012.07, as of January 26, 1931. This amount includes $ 352.88 allowed on item (2) of the specification; $ 617.69 allowed on item (3), damages for not taking deliveries by December 1, 1925, instead of September 1, 1925, as computed in that item of the specification, and $ 41.50 for taxes paid by plaintiff. Item (1) of the specification was disallowed. This item is the difference between the amount due plaintiff as shown by his invoices of total shipments, $ 35,709.96 and the amount he had received from defendant, $ 35,302.86, which was $ 407.10, plus interest thereon computed by plaintiff.

The case is here on exceptions by both parties.

Such of plaintiff's exceptions as are briefed relate to the disallowance of item (1) of the specification. Since these exceptions are not material in view of our disposition of defendant's exceptions, they are not considered.

The defendant insists that the undisputed evidence shows a substituted contract which had been fully performed; shows a waiver by plaintiff of the claims upon which he now seeks to recover; shows that he is estopped from asserting such claims, and shows an accord and satisfaction. It is necessary to notice only the last question. This was raised in various ways. The defendant, in effect, requested the court to find that the acceptance by plaintiff of a certain check given him by defendant June 14, 1927, was, in the circumstances, an accord and satisfaction of plaintiff's claims. In paragraph 27 of its findings, the court says: "Plaintiff has not, by his conduct, waived his right now to assert his claim for interest or special damages," and in the following paragraph, it says: "The check of June 14, 1927, and the letter accompanying it, when cashed by the plaintiff, was not an accord and satisfaction of the plaintiff's claim." Defendant excepted to the failure of the court to find as requested, to the findings quoted, and to such other findings as bear upon the same subject-matter.

The plaintiff contends that the question of accord and satisfaction is not before us, because not specially pleaded. The defendant says that it is specially pleaded, but insists that this is not necessary under the Practice Act, G. L. 1791, sub-division II, as amended by Act No. 72 of Laws of 1921. As to the latter claim, it is in error. We held otherwise in Noyes et al. v. Pierce, 97 Vt. 188, 122 A. 896. To the same effect is Howard National Bank v. Wilson & Trustee, 96 Vt. 438, 120 A. 889. Both of these cases were tried below after the 1921 amendment became effective.

While the plea is not as specific as might be desired, we think it contains the essentials of a plea of accord and satisfaction. It alleges, in substance, that there was a dispute between the parties as to when defendant was required, under the terms of the contract, to accept shipments, and a dispute as to its right to the discounts; that it sent plaintiff a check dated June 14, 1927, for $ 225.63 (after the dispute as to both claims had arisen), accompanied by a letter of same date stating that the check "settles your account in full"; that plaintiff immediately received and cashed such check without protest, wherefore the defendant says that the plaintiff has settled his claims against defendant, and each of them, and has been paid in full. To be sure, it does not follow the approved form by averring in express terms that defendant delivered the check to plaintiff in full satisfaction and discharge of plaintiff's claims, or that plaintiff accepted it in full satisfaction and discharge of such claims, but that such is the import of the language used seems clear. But assuming that the plea does not put in issue this question, the plaintiff is no better off, since we have held that the course of the trial may be such as to constitute a waiver of any question respecting the sufficiency of the pleadings to make available a defense not properly pleaded. Howard Nat. Bank v. Wilson & Trustee, supra; Bradley v. Blandin & Somerset Land Co., 91 Vt. 472, 475, 100 A. 920; Barre Trust Co. v. Ladd, 103 Vt. 392, 154 A. 680. Such was the situation here. The record shows that the trial proceeded to its conclusion upon the theory that this was one of the defenses relied upon. In his opening statement, counsel for defendant called attention to the check and letter set forth in its plea, and plaintiff's acceptance of such check, and claimed that any matters of dispute that might have previously existed were thereby settled. To this counsel for plaintiff replied, in effect that that did not constitute an accord and satisfaction, thus indicating that he then understood defendant's claim respecting the effect of this transaction. Later, the defendant introduced evidence, without objection, to show that plaintiff accepted and cashed this check without protest, and before he made any claim that it was not accepted for the purpose for which it was given, namely, to settle his account in full. Furthermore, as we have seen, defendant requested the court to find that the...