H. C. Pollman & Bros. Coal & S. Co. v. City of St. Louis

• Decision Date: 17 October 1898
• Citation: 145 Mo. 651,47 S.W. 563
• Court: Missouri Supreme Court
• Parties: H. C. POLLMAN & BROS. COAL & SPRINKLING CO. v. CITY OF ST. LOUIS.

47 S.W. 563

145 Mo. 651

H. C. POLLMAN & BROS. COAL & SPRINKLING CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

October 17, 1898.

COMPROMISE — UNLIQUIDATED CLAIM — ACCEPTANCE UNDER PROTEST.

1. Plaintiff's claim is an unliquidated one, so as to be the subject of compromise, though the dispute is only as to whether damages to fire and sprinkling plugs was caused by it, where it did street sprinkling for defendant city under a contract that it should receive a certain amount therefor, but that from such sum there should be deducted any damages to the fire and sprinkling plugs caused by it.

2. Acceptance of a sum tendered on the express condition that it be received and receipted for in full of an unliquidated claim is not affected by the fact that at the time of such afceptance and the giving of such receipt a written protest is filed, stating that the balance claimed will be insisted on.

Appeal from St. Louis circuit court.

Action by H. C. Pollman & Bros. Coal & Sprinkling Company against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Affirmed.

Lubke & Muench, for appellant. B. Schnurmacher and Chas. Claflin Allen, for respondent.

GANTT, P. J.

This cause is here upon appeal from a judgment in favor of defendant on a demurrer to plaintiff's reply. Plaintiff was one of the street-sprinkling contractors for the year 1893. It procured five contracts for sprinkling five districts of the city, beginning March 15 and ending December 1, 1893. Each of said districts embraced certain streets and public places of the city, and each contract provided for the payment of a certain lump sum to plaintiff for the work to be done. Payments were to be made upon monthly certificates or estimates, covering 90 per cent. of the amount of work done during the month, the remaining 10 per cent. to be certified in favor of plaintiff upon the full completion of each contract to the satisfaction of the street commissioner. One of the provisions of the contract was to the effect that the contractor should exercise great care in operating the fire and sprinkling plugs, out of which he was permitted to obtain water free of charge, and that all repairs of damages or injuries done by the contractor or his employés to such plugs should be made by the water commissioner of the city, said commissioner to report the cost thereof to the street commissioner, and the latter to deduct the amount from any moneys due the contractor under the contract. Payments were made to plaintiff from time to time until the close of the sprinkling season. At that time the street commissioner made out estimates of the total amount of work done under each of the said contracts, and, after deducting therefrom payments theretofore made on account, and in each instance a certain sum for repairs to fire and water plugs, forwarded said estimates and statement to the president of the board of public improvements, who approved the same, and forwarded them to the city auditor, who in turn allowed the same. Thereafter, on December 22, 1893, plaintiff received and accepted from said auditor warrants upon the city treasurer for the amounts thus allowed, which warrants he presented for payment, and on December 23, 1893, received the amounts called for in each, and in each instance signed a receipt in full payment and satisfaction of the account, and of all claims against the city. All of the foregoing matters appear in the petition and answer in the case. Plaintiff thereupon filed a reply to the answer, in which plaintiff substantially admits all of the foregoing facts, but denies that the amounts charged against it for repairs to fire and sprinkling plugs were properly charged, because plaintiff avers that no damage or injury was done to them by any of its employés, and that whatever repairs were made were in consequence of the usual and ordinary wear and tear of the plugs, or for injuries inflicted by parties other than plaintiff. The reply admits that plaintiff received the amounts tendered by defendant, and that plaintiff executed receipts in full, as averred in the answer; but set forth that on receiving said several amounts, and on signing and delivering said several receipts, plaintiff protested against the deductions, denying liability therefor, and asserting in the protest that it signed said receipts only because they were "forced" on plaintiff by the city, and because plaintiff "could not help itself, and needed said money." To this reply defendant demurred generally on the ground that the same did not contain matter sufficient to overcome the effect of plaintiff's act in receiving the money tendered it, with the condition annexed thereto that the same was in full discharge of all of plaintiff's claims, or to overcome the effect of plaintiff's releases. The demurrer was sustained, and judgment thereupon entered in favor of defendant upon the pleadings, from which judgment plaintiff has appealed.

Plaintiff's contention is that it is entitled to recover in this action the amounts withheld for repairs to plugs, notwithstanding the foregoing facts, on the well-established proposition of law that, where a debt is undisputed and certain, payment of a less amount than the whole will not bar an action for the recovery of the balance. Defendant acquiesces in this proposition fully, but contends that it has no application to the case at bar. On the contrary, defendant claims that in December, 1893, a controversy did arise and exist between the parties as to the proper meaning of their contracts, and as to the amounts due and payable thereunder; and that, the tenders to plaintiff having been conditional, and plaintiff having accepted the same, and having...