Ingram v. Sauset

• Citation: 209 P. 699,121 Wash. 444
• Decision Date: 07 October 1922
• Docket Number: 17000.
• Parties: INGRAM v. SAUSET et al.
• Court: United States State Supreme Court of Washington

209 P. 699

121 Wash. 444

INGRAM v. SAUSET et al.

No. 17000.

Supreme Court of Washington

October 7, 1922

Department 1.

Appeal from Superior Court, Whatcom County; Ed E. Hardin, Judge.

Action by J. A. Ingram against K. Sauset and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Kellogg & Thompson, of Bellingham, for appellants.

Bixby &amp Nightingale, of Bellingham, for respondent.

TOLMAN J.

This action was brought by respondent as plaintiff to recover for labor, material, and supplies performed and furnished for and to appellant Sauset upon a contract for street improvements in the city of Bellingham. The appellant United States Fidelity & Guaranty Company is the surety on the bond given by Sauset conditioned for the performance of the terms of the contract. The principal defense, and the one here involved was a plea of accord and satisfaction. The case was tried to a jury which returned a verdict in respondent's favor for the full amount claimed, and from a judgment thereon, including attorney's fees fixed by the court, both defendants have appealed.

It appears without substantial dispute that after the services were rendered respondent, through a letter written by an attorney, requested a settlement; the amount due being then in dispute. Some two weeks later appellant Sauset mailed to respondent a purported statement, as follows:

                                            "March 30, 1918
                      "K. Sauset to J. A. Ingram, Dr
                 For work to date on Army St
                November ..................... 135  hours
                December ................. 132 1/2  hours
                January ...................... 169  hours
                February ..................... 157  hours
                March ......................... 78  hours
                                          ------------------
                                               671 1/2 hours
                84 days at $4.00 .................. $336 00
                Drawn by Ck from K. S..... $ 55 00
                From Geo. F. Ambrose ....... 48 84
                                          --------
                                           $103 84  103 84
                                                    --------
                    Balance due ................... $232 16"
                

Inclosed with the statement was a check dated April 3, 1918, in the usual form, payable to respondent for the sum admitted by the statement to be due. On receipt of the statement and check respondent took them to his then attorney, indorsed the check, and left both with his attorney with the understanding that, if upon investigation it was determined that the check could be accepted as payment on account only, it should be cashed by the attorney. The check was cashed on April 8, 1918, and thereafter this action was begun to recover what is claimed to be the balance.

It is true that on cross-examination respondent testified in effect that he received the idea from the statement and check that Sauset intended that the check should be payment in full; that he (respondent) was unwilling to so accept it, and advised his attorney to cash the check only in the event that it could safely be accepted and treated as a payment on account. From this it is argued that respondent, knowing the check was intended as payment in full, is as much bound thereby as though the statement or the check, one or both, bore a written notice of the maker's intention. The argument is plausible, but we think unsound. In Le Doux v. Seattle North Pacific Shipbuilding Co., 114 Wash. 632, 195 P. 1006, we said:

'The general rule is that, where a debtor sends to his creditor a check for the amount he is willing to pay, and at that time informs the creditor that he intends the check to be considered as full payment, then, by the acceptance and cashing of the check, the creditor agrees to the settlement, and cannot thereafter seek additional compensation.'

And in this and all other cases where the...