Pollman and Brothers Coal and Sprinkling Company v. City of St. Louis
| Decision Date | 17 October 1898 |
| Citation | 47 S.W. 563,145 Mo. 651 |
| Parties | Pollman and Brothers Coal and Sprinkling Company, Appellant, v. City of St. Louis |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
Lubke & Muench for appellant.
(1) The claim of plaintiff was liquidated, ascertained and undisputed. Payment of only part thereof is not payment of the whole, and plaintiff can maintain its action for the balance, and have the justness of defendant's counter-claim inquired into, notwithstanding a formal receipt in full. Especially is this so when the diminished sum was received under protest, and a contemporaneous notice served on defendant that the claim for the balance would be maintained. Riley v. Kershaw, 52 Mo. 224; Perkins v. Headley, 49 Mo.App. 556; Maack v Schneider, 51 Mo.App. 92; Swofford v. Goss, 65 Mo. 55; Griffith v. Creighton, 61 Mo.App. 1; Chamb. of Com. v. Knowlton, 42 Min. 229; Fire Ins. Ass'n v. Wickham, 141 U.S. 564; Railroad v Davis, 35 Kas. 464. (2) Where a claim consists of several items, and the debtor allows some, and wholly rejects others, the creditor is not precluded from suing on the rejected items, even though he accepts the smaller sum with full knowledge of the debtor's position. Wilson v. Palo Alto Co., 65 Iowa 18.
B. Schnurmacher and Chas. Claflin Allen for respondent.
(1) The releases having been executed by plaintiff with a full knowledge of all the facts, and without trickery or deception on the part of defendant, are a bar to any action at law by plaintiff until set aside by a court of equity. Och v. Railroad, 130 Mo. 27; Hancock v. Blackwell, 139 Mo. 440; Grumley v. Webb, 48 Mo. 562; Dengler v. Auer, 55 Mo.App. 548. (2) Even where an equitable proceeding is unnecessary, that is, where the release is void instead of being merely voidable, so that an action at law may be maintained, a prerequisite is a return of the money or other consideration received, so as to place the parties in statu quo. Carson v. Smith, 133 Mo. 606. (3) Where a party receives part of a demand concerning which a controversy exists, on a tender from his debtor, asserting that the same is in full, he accepts the condition as well as the thing tendered, and can not afterwards be heard to complain that the amount accepted was insufficient. A tender must be accepted as made; the creditor has no alternative but to refuse it, or accept it with the conditions annexed thereto. Adams v. Helm, 55 Mo. 468; Perkins v. Headley, 49 Mo.App. 556; Deutmann v. Kilpatrick, 46 Mo.App. 624; Henderson v. Cass Co., 107 Mo. 50; Lee v. Dodd, 20 Mo.App. 271; Haeussler v. Duross, 14 Mo.App. 103. (4) And under the circumstances last stated, it will not avail the creditor to protest while he accepts the thing tendered. Truax v. Miller, 48 Minn. 62; Bull v. Bull, 43 Conn. 455; Preston v. Grant, 34 Vt. 201; Adams v. Helm, 55 Mo. 468; Callahan v. New York, 6 Daly, 230; Railroad v. Allen, 46 Ark. 217; Bromley v. School District, 47 Vt. 381. (5) Where the items of an account are not disputed, it is nevertheless an unliquidated account if the debtor claim a set-off which is not admitted by the creditor. Ostrander v. Scott, 161 Ill. 339.
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 ninety per cent of the amount of work done during the month, the remaining ten 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 contracts 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 employees 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 employees, 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 executed the releases referred to in the answer, plaintiff should not now be permitted to maintain suit to recover the alleged balance.
I. It is well settled law that the payment of a part of a debt, or of liquidated damages, is not a satisfaction of the whole debt even when the creditor receives the part for the whole and receipts for the whole demand. Riley v. Kershaw, 52 Mo. 224; Willis v. Gammill, 67 Mo. 730; Tucker v. Bartle, 85 Mo. 114. But this doctrine has no application in cases of fair and well understood compromises of unliquidated or disputed demands faithfully carried out, nor in those cases in which a new consideration enters into the stipulations for the release of the whole debt by paying a portion only, as for instance if a part be paid before the whole is due or could be demanded, or if the payment of a part be more beneficial in any way to the creditor than that prescribed by...
To continue reading
Request your trial