Sherman v. Sidman

• Decision Date: 30 March 1938
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SIDNEY SHERMAN & another v. ISADORE SIDMAN.

300 Mass. 102

14 N.E.2d 145

SIDNEY SHERMAN & another v. ISADORE SIDMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1938

October 4, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE LUMMUS, & QUA, JJ.

Accord and Satisfaction.

An agreement in the nature of an accord of a disputed claim, made to avoid litigation and providing for payments of agreed sums in the future, was not intended to be in itself a satisfaction and not being fully performed, did not discharge the claim.

CONTRACT. Writ in the Municipal Court of the City of Boston dated February 21 1936.

The case was heard by Devlin, J., and in this court was submitted on briefs.

B. Cohen, for the plaintiffs. B. Feinberg, for the defendant.

FIELD, J. This is an action of contract brought in the Municipal Court of the City of Boston by writ dated February 21, 1936, on an account annexed to recover the sum of $488.79, money had and received. The answer was a general denial and discharge by accord and satisfaction. The judge denied seven of the plaintiffs' eight requests for rulings. A report to the Appellate Division was ordered dismissed, and the plaintiffs appealed.

The report is not in proper form since it does not show that there was a finding for either party. But since no objection has been made to the form of the report and the omission may be supplied by reference to the docket entries which show that there was a finding for the defendant, we consider the case on that basis. See Rule 29 of the Municipal Court of the City of Boston (1932); Draft Report Model accompanying such rules page 50; Nolan v. Newton Street Railway, 206 Mass. 384 , 388; Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22 .

Testimony of one of the plaintiffs tended to show that his firm employed the defendant as a salesman of their merchandise strictly on a commission basis and advanced him $488.79 in anticipation of commissions to be earned by him on future sales of merchandise, and that, after the defendant left the plaintiffs' employ, the witness made numerous requests of the defendant "to return the money advanced to him in anticipation of commissions which he never earned," and "after numerous promises by him to pay same which he never fulfilled, the plaintiffs brought suit . . .; that during the pendency of said suit, the plaintiffs and the defendant agreed on a compromise settlement, and, in consideration of said compromise, the plaintiffs allowed said suit to be nonsuited. Subsequently, the defendant failed to carry out the promises of the compromise and thereafter, on December 30, 1935, a new compromise agreement was drawn up between the parties." This witness testified further "that the defendant failed again to carry out the promises of this last written compromise and as a consequence, the plaintiffs brought this suit to recover the original sum due, namely, $488.79."

Testimony of the defendant, on the other hand, tended to show that his agreement with the plaintiffs was to sell their merchandise on commission and a weekly salary of $25, and that the sum for which this action was brought represented the "unpaid" salary "which he failed to receive" from the plaintiffs. He testified "that he signed an accord and satisfaction agreement . . . on December 30, 1935, in which he agreed to pay the plaintiffs the sum of $100 in full settlement of this claim, and that $25 was paid by him to the plaintiffs on account of same; that the plaintiffs on numerous occasions demanded from him the balance due but that he was unable to pay them because of business conditions," and "that he owed the plaintiffs nothing."

The written agreement of December 30, 1935, referred to by both witnesses, which was signed by them, was introduced in evidence. It reads as follows: "December 30, 1935. I, Isadore Sidman, agree with Sidney Sherman and Morton Sadwin that I am to pay them $100.00 in full settlement of their claim against me, the amount of which is greatly in dispute, and on account of which they brought suit against me some time ago in the Boston Municipal Court. I am to pay them that amount of money in installments from time to time as I have the necessary money. I claim that I owe them nothing, but I am willing to pay them $100 in order to avoid litigation, and the expenses and troubles connected with it. On account of the amount agreed upon and for which this matter is to be settled I am paying this day $25. Signed by all the parties this 30th day of December, 1935."

This action is brought upon the original claim of the plaintiffs to recover money advanced by them to the defendant, and not upon the written agreement. The only question argued relates to the defence of accord and satisfaction.

The report of the denial by the trial judge of the plaintiffs' sixth request for a ruling that "The defendant has not sustained the burden of proving an accord and satisfaction as a defence to this action," considered in connection with the general finding for the defendant, presents the question whether the evidence warranted a finding that this defence was established. See Commonwealth v. Hull, 296 Mass. 327 , 329, and cases cited. The denial of this request was error, since the evidence did not warrant a finding that this defence, which the defendant had the burden of proving (Rosenblatt v. Holstein Rubber Co. 281 Mass. 297 , 300), was established.

The evidence warranted a finding that the plaintiffs had a claim against the defendant which was the subject of an honest and reasonable dispute, that an agreement was entered into between the parties as set forth in the written agreement that this written agreement referred to the disputed claim upon which the action was brought, and that the parties thereby agreed that this claim should be settled in the manner stated in the written instrument. Such an agreement, if not invalid on other grounds, is supported by consideration and enforceable according to its terms. Mutual promises to settle such a disputed claim are sufficient consideration for each other. See Chamberlain v. Barrows, 282 Mass. 295 , 299; Am. Law Inst. Restatement: Contracts, Sections...