Lapp v. Smith

• Decision Date: 18 December 1899
• Citation: Lapp v. Smith, 183 Ill. 179, 55 N.E. 717 (Ill. 1899)
• Parties: LAPP et al. v. SMITH et al.
• Court: Illinois Supreme Court

183 Ill. 179

55 N.E. 717

LAPP et al.

v.SMITH et al.

Supreme Court of Illinois.

Dec. 18, 1899.

Appeal from appellate court, First district.

Action of assumpsit by William H. Smith and others against Peter Lapp and others. Judgment for plaintiffs was affirmed in the appellate court (83 Ill. App. 203). Defendants appeal. Reversed.Flower, Smith & Musgrave, for appellants.

Strickler & Knight, for appellees.

The judgment of the superior court of Cook county entered in favor of the appellees against the appellants, in an action of assumpsit, was affirmed by the branch appellate court for the First district, and this is an appeal from such judgment of affirmance.

The declaration was in the common counts, to which was appended a bill of particulars of items of merchandise alleged to have been sold by the plaintiffs to the defendants at various dates; the sum total, less credits for certain articles returned, being $2,246.29. The bill of particulars also acknowledged a credit of $500, leaving the net demand $1,746.29. The judgment was for the amount of the claim, less the sum of $50.

It is urged the court erroneously refused to give the following instructions to the jury, as requested by the appellants:

‘If the jury believe from the evidence that prior to the bringing of this suit by the plaintiffs against the defendants there was an honest dispute between the plaintiffs and the defendants as to the amount due from the defendants to the plaintiffs, and whether the same was due, and on or about the 16th the May, 1898, in order to adjust and settle the controversy and the account, the defendants delivered to the plaintiffs a check for $500, and three notes, one for $565.13, payable four months after date, one for $565.14, payable five months after date, and one for $565.14, payable six months after date, said check and notes aggregating the sum of $2,196.41; and that said check and notes were delivered to the plaintiffs with the statement and understanding that they were given, and should be received, in full settlement and payment of said claim of the plaintiffs against the defendants; and the plaintiffs received said check, and collected and kept the amount thereof, but refused to accept the notes, and returned the same to the defendants; and that the defendants demanded back said $500 unless the plaintiffs should receive the check and notes in full settlement of the account; and the defendants now have said notes in their possession, and have tendered the same to the plaintiffs on the trial of this case,-then the court instructs you, as a matter of law, that the plaintiffs cannot recover in this action.’

‘The jury are instructed that if the check for $500 and three notes introduced in evidence were sent to the plaintiffs by the defendants at the same time and as a part of one transaction, as a full settlement of an honestly disputed claim between the plaintiffs and the defendants, then the plaintiffs, as a matter of law, were not entitled to receive and appropriate the check, and collect the amount thereof, and return the notes; that a tender of such a kind must be accepted as a whole or not at all; and if the return of the notes was not acquiesced in by the defendants, but they have been tendered back by the defendants to the plaintiffs, and are now ready to be delivered by the defendants to the plaintiffs, then the plaintiffs cannot recover in this action.’

The facts which the evidence tended to establish, and necessary to be stated in order to determine as to the correctness of these rulings of the trial court, are: That appellees were manufacturing jewelers at Attleboro, Mass., and appellants were dealers in jewelry in Chicago. That appellants had for many years been customers of appellees, and had purchased from appellees the articles of jewelry specified in the bill of particulars, but claimed that, according to the usage and custom which had long obtained in their dealings with appellees, payment thereof should not be demanded at that time, and also that appellees were indebted to them in the sum of $50 for advertising appellees' goods and business in a catalogue issued by appellants. That appellees insisted that their claim was due and payable, and that they were not liable upon the said demand of $50 for advertising. That appellants, on the 7th day of May, 1898, wrote appellees as follows: ‘Inclosed please find check and notes for your statement, also sent herewith, less legitimate deductions. We have done business with you pleasantly a great many years, and hope that the present misunderstanding will not terminate our dealings with you in the future, on a basis which may be mutually agreeable, to be suggested by you. For reference, we send you a memorandum of the last three settlements of your account, which, so far as we know, were perfectly satisfactory to you. After a calm scrutiny and verification with your books, you will certainly agree that the present settlement is as good, if not better, than those of the past,’-and inclosed therewith memoranda of the settlements of prior accounts on three separate occasions, and also inclosed a check for $500, and three notes signed by appellants, and payable to the order of the appellees, each dated May 16, 1898, one for $565.13, due in four months, the others each for $565.14, due, respectively, in five and six months, from date; the aggregate of the check and the three notes being that of the claim of appellees, less the claim of appellants for $50 for advertisement aforesaid. That appellees responded to this letter, under date of May 12, 1898, as follows: ‘Your proposed settlement is not satisfactory to u...