Specialty Glass Co. v. Daley

• Decision Date: 09 January 1899
• Citation: 52 N.E. 633,172 Mass. 460
• Parties: SPECIALTY GLASS CO. v. DALEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 460

52 N.E. 633

SPECIALTY GLASS CO. v. DALEY.

Supreme Judicial Court of Massachusetts, Bristol.

January 9, 1899

COUNSEL

F.A. Pease, for plaintiff.

J.W Cummings, for defendant.

OPINION

KNOWLTON J.

The defendant owed the plaintiff $48.33 for goods sold and delivered. On receipt of a bill demanding payment, he referred the matter to his attorney, who wrote the plaintiff a letter, purporting to be written by him as the attorney of the defendant, offering to pay 10 per cent. of the debt in full settlement. This offer the plaintiff refused by letter, and, in a later letter directed to the "Assignee of M.R. Daley," sent the account with proof of the indebtedness. This account the defendant's attorney returned in a letter, the last sentence of which is as follows: "If you will send your bill to him [the defendant], he will pay you a dividend of ten per cent." About a fortnight later the attorney inclosed his own check for $4.83 in a letter to the plaintiff, in which he said that he sent it in full settlement of the bill. All of these letters to the plaintiff were written in such a way as to indicate that the writer was acting throughout as the attorney for the defendant. The plaintiff acknowledged receipt of the check as a dividend on account, but declined to accept it as a settlement. It obtained cash on the check, and gave the defendant credit for it on account. The money against which the check was drawn was furnished by the defendant's wife, but the plaintiff had no knowledge of this.

As between the parties, the case stands as if the money had belonged to the defendant. Spaulding v. Kendrick (Mass.) 51 N.E. 453.

Even if it could be found that the plaintiff's conduct amounted to an agreement to accept the check in settlement of the debt,--which we do not intimate,--the case would come within the rule, which is well established in Massachusetts, that an agreement to accept a part of a debt in payment for the whole is not binding, unless it is made by an instrument under seal. Lathrop v. Page, 129 Mass. 19; Harriman v Harriman, 12 Gray, 341; Potter v. Green, 6 Allen, 442; Jennings v. Chase, 10 Allen, 526; Slade v. Mutrie, 156 Mass. 19, 30 N.E. 168.

There was no dispute or uncertainty about the amount of the debt and the rule in regard to the compromise of disputed claims, and the settlement of unliquidated and doubtful claims, does not apply. Tompkins v. Hill, 145 Mass. 379, 14...