Qualseth v. Thompson

• Decision Date: 02 June 1921
• Docket Number: 4876
• Citation: 44 S.D. 190,183 N.W. 116
• Parties: TOM QUALSETH, Plaintiff and respondent, v. GUNERIUS THOMPSON, Defendant and appellant.
• Court: South Dakota Supreme Court

44 S.D. 190

183 N.W. 116

TOM QUALSETH, Plaintiff and respondent, v. GUNERIUS THOMPSON,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon John T. Medin, Judge

#4876--Reversed.

Krause & Krause

Attorneys for Appellant.

Keith & Luddy

Attorneys for Respondents.

Opinion filed June 2, 1921

GATES, J.

Plaintiff performed work and labor for defendant in cutting cottonwood logs into lumber with a portable saw. After crediting certain payments, plaintiff claimed a balance of $473.62 to be due from defendant. Defendant claimed an offset on account of defective sawing and waste. Plaintiff, as a witness, testified as follows:

"Q. And did not Mr. Thomson then tell you he was willing to pay you $400 and call it square?

"A. Yes, sir, and told him I would not accept that.

"Q. And then, after that, he met you on the road near Colton, and you asked him when you could expect your balance?

"A. Yes, sir.

"Q. And he then told you again, did he not, that the loss to him on the lumber was greater than he had figured or guessed, but that since he had told you he would give you $400 as settlement of balance due you, he would not go back on that?

"A. Yes, sir; Thompson said 'I ain't got the money now, but will come over and pay you some time,' and I waited a month.

"Q. And you afterwards went to his house?

"A. Yes, sir.

"Q. And he told you he would pay you the $400, as he had before told you?

"A. Yes, sir.

"Q. And that he considered that would be in full settlement of the balance he owed you?

"A. Yes; and I told him I would see about that."

Defendant executed and delivered to plaintiff his check upon a bank in the sum of $400, upon the face of which he wrote the following: "Balance for sawing lumber." Plaintiff, being aware of the condition, indorsed and cashed the check, and later brought suit for $73.62 in the municipal court of Sioux Falls. From a judgment for plaintiff, defendant appealed to the circuit court of Minnehaha county. Upon the trial in that court the jury gave plaintiff a verdict for $73.62. From the judgment and an order denying new trial, defendant appeals.

The only question before us is whether there was an accord and satisfaction of the indebtedness. Section 787, Rev. Code 1919, provides:

"Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation."

The question is whether the unconditional indorsement of the check with knowledge of the condition on the face thereof and knowledge of a real dispute as to the amount due constituted an acceptance in writing. Our attention is called to Siegele v. Ins. Ass'n., 132 N.W. 697. In that case the check had a similar condition upon its face, but above his indorsement on the check the payee wrote: "Accepted in part payment of loss by payee." This was held not to be an acceptance in writing of the condition. Attention is also called to Hagen v. Townsend, 131 N.W. 512, but in that case there was no condition noted on the check.

In 1 RCL 196, we find the rule...