Larsen v. Zimmerman

• Decision Date: 11 October 1957
• Citation: 153 Me. 116,135 A.2d 270
• Parties: Oskar LARSEN v. Herman ZIMMERMAN and Bertha Zimmerman.
• Court: Maine Supreme Court

Page 270

135 A.2d 270

153 Me. 116

Oskar LARSEN v. Herman ZIMMERMAN and Bertha Zimmerman.

Supreme Judicial Court of Maine.

Oct. 11, 1957.

Phillips & Olore, Presque Isle, for plaintiff.

James A. Bishop, Presque Isle, for defendants.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN, and DUBORD, JJ.

WILLIAMSON, Chief Justice.

This action upon an account annexed for materials furnished and labor performed in the construction of a dwelling house is before us on exceptions to the acceptance of a referee's report. The referee found for the plaintiff in the amount of the claim, or $776.11. The sole issue is whether the referee erred as a matter of law in finding that the defendants had not established the defense of accord and satisfaction.

The bill of exceptions reads in part as follows:

'At the hearing before the referee defendants introduced in evidence a photostatic copy of a bank check of Herman Zimmerman signed by Bertha Zimmerman, dated November 7, 1953 payable to the order of Oskar Larsen in the amount of $1000.00 drawn on the Northern National Bank of Presque Isle. In the upper left hand corner are the printed words 'By endorsement this check is accepted in full payment of the following account.' Underneath this is written the word 'Final.' Below this is printed, 'If incorrect Please return. No other receipt necessary.' The check bears endorsement on the back 'Oskar Larsen', and the check is perforated to form the following: 'Paid, 11-9-53, 52-123.'

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'In his findings the referee found as follows: '* * * There is no doubt that the check of Herman Zimmerman dated November 7, 1953 for $1000.00 bearing in the upper left hand corner the word 'final' was intended by the Zimmermans to be a final settlement of the account. It does not appear however, that such intent was made clear to the plaintiff prior to his receipt of the check.'

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'In his findings the referee also found as follows: 'There is no evidence that the parties discussed the offer of $1000.00 in final settlement, and the use of the word 'final' on the check does not appear sufficient to prove agreement on the part of the Plaintiff.''

The defendants contend that the plaintiff had agreed to build the house for $17,000, provided no changes were made. The referee in his report found that the defendants had paid $18,500, that there was no contract for a specific sum, and he declined to consider a claim of damages from inferior workmanship. No objections were taken to these findings and rulings and they are not before us.

Under R.S. Chap. 113, Sec. 64, there may be an accord and satisfaction of a liquidated or undisputed claim, as distinguished from an unliquidated or disputed claim, by payment of less than the amount due. Thus, the common law is modified by the statute, which reads:

'No action shall be maintained on a demand settled by a creditor or his attorney entrusted to collect it, in full discharge thereof, by the receipt of money or other valuable consideration, however small.'

It appears clearly from the report of the referee that before the check was delivered to the plaintiff there was a disputed claim arising from the construction of the house. We are not, however, concerned with whether the claim was disputed or undisputed, for in either event the statute is applicable. Mayo v. Stevens, 61 Me. 562; Fuller v. Smith, 107 Me. 161, 165, 77 A. 706; Bell v. Doyle, 119 Me. 383, 111 A. 513; Fogg v. Hall, 133 Me. 322, 178 A. 56.

In passing upon the exceptions, we accept the facts as found by the referee, and we assume there is supporting evidence therefor. The record before us does not include a transcript of the oral testimony. From the report of the referee and the bill of exceptions it plainly appears that no evidence entered the case relating to the sufficiency of the asserted accord and satisfaction apart from the findings stated above from the bill of exceptions. To these facts--and in particular to the cleck with its terms and conditions--the referee erroneously applied the pertinent rules of law.

We are mindful of the established rule that a referee's findings of fact stand when based upon any credible evidence. When, however, the referee fails to draw the only reasonable inference from unquestioned facts, there is error of law. So here, in our view the only reasonable inference to be drawn from facts found by the referee leads directly to the conclusion that the intent of the defendants to make a final settlement was made known to the plaintiff from the check itself, and that the plaintiff accepted the check on the condition therein stated.

The findings 'It does not appear, however, that such intent was made clear to the plaintiff prior to his receipt of the check,' and 'There is no evidence that the parties discussed the offer of $1000.00 in final settlement,' are facts accepted by us at their full value. The error of law lies in the conclusion of the referee that to complete an accord and satisfaction the check was not evidence in itself sufficient without more to establish the intention of the defendants and the plaintiff in giving and receiving the check.

The word 'final' on the check could have only one meaning to a person in the situation of the plaintiff; namely, that it was the intention of the defendants thereby to settle the claim. What else could 'final' mean to the plaintiff contractor? What need was there for the parties to discuss the offer of $1,000 in final settlement? The plaintiff chose to accept the check with the condition attached. He now seeks to deny the force and effect of the condition, and this he may not do.

Price v. McEachern, 111 Me. 573, 90 A. 486 and Bell v. Doyle, supra, cited by the referee in his report, do not require the result reached by him. In Price, supra, a jury case, the issue was whether a check for a workman's wages was accepted in full settlement under an oral agreement. There was no writing upon the ckeck, as here. The wide difference from the instant case is shown in the opinion in 111 Me. on page 578, 90 A. on page 489:

'The cases cited by the defendants contain written proof that the check or money, if accepted, was in full payment. The contract of acceptance was made clear. But in the case at bar no such evidence appears. The testimony dues not show that the defendants presented any new contract or prescribed any conditions, upon the offer of the check to the plaintiff.'

In Bell, supra, on motion, for new trial by the defendant, it was held a question of fact for the jury whether defendant's...