Grinnell v. Spink

• Decision Date: 05 November 1879
• Citation: 128 Mass. 25
• Parties: David D. Grinnell v. John Spink
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 25

David D. Grinnell v. John Spink

Supreme Court of Massachusetts

November 5, 1879

Bristol.Contract upon an account annexed for work and materials.Answer: 1.A general denial.2. Payment.

At the trial in the Superior Court, before Pitman, J., without a jury, the plaintiff put in evidence tending to show that he performed labor and furnished materials for the defendant on the latter's house, to the value of $ 142.43; and that at the time he rendered his bill for said amount, the defendant disputed the amount, and refused to pay the bill.It also appeared that subsequently, and before any payment was made, the plaintiff and the defendant again looked over the bill, and the defendant again objected to the amount and to the bill generally.

The defendant testified that the plaintiff then agreed to accept $ 120 in payment of the bill; and it was admitted that he gave the following receipt: "$ 120.00.Fall River August 25, 1877.Received of John Spink one hundred and twenty dollars in full for stock and labor on his house corner Second and Cottage Streets, to date.David D Grinnell."

The plaintiff testified that, before and after the giving of the receipt, he told the defendant that he did not propose to receipt the bill until he got it; that twelve men would decide whether he should have any more; this conversation was denied by the defendant.The plaintiff further testified that he took his bill away; and explained the receipt by saying that he intended it for a receipt in full for $ 120, and no more, and that, at the time he gave it, he intended to sue the defendant for the balance.

The defendant offered the receipt in evidence; and asked the judge to rule that the plaintiff could not recover.The judge refused so to rule; and ruled that there was no defence open under the answer but that of payment; that the receipt was prima facie proof of this, but it was rebutted by the establishment of the plaintiff's claim for a larger sum than the amount paid; and that, under the pleadings, no question was open as to the effect of the payment as an accord and satisfaction, or of the conduct of the plaintiff as amounting to an estoppel; and ordered judgment for the plaintiff for the balance of his claim.The defendant alleged exceptions.

Exceptions overruled.

N. Hatheway & J. W. Cummings, for the defendant.

T. H. Niles, for the plaintiff.

Gray C. J. Colt & Ames, JJ., absent.

OPINION

...