Thomas C. Harrington v. Mutual Benefit Health And Accident Association

• Decision Date: 07 January 1936
• Citation: 182 A. 179,108 Vt. 48
• Parties: THOMAS C. HARRINGTON v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION
• Court: Vermont Supreme Court

182 A. 179

108 Vt. 48

THOMAS C. HARRINGTON v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION

Supreme Court of Vermont

January 7, 1936

November Term, 1935.

Accord and Satisfaction---Acceptance of Offer in Full Satisfaction---Necessity of Understanding Terms of Offer---Jury Question as to Accord and Satisfaction.

1. Acceptance and retention, by one having a disputed or unliquidated claim against another, of a less amount than he claims is due, offered by the other in full satisfaction of such claim, operates as an accord and satisfaction thereof.

2. To constitute an accord and satisfaction, offer made must be such that party accepting it is bound to understand that he takes it in full satisfaction.

3. In action on health and accident insurance policy, where insured declined to accept draft offered, which provided that its acceptance should constitute a full release, until words limiting period purporting to be covered were added, though insured knew agent of insurance company claimed nothing more would be paid on the claim, held there was question for jury whether acceptance of draft constituted accord and satisfaction.

ACTION OF CONTRACT on health and accident insurance policy. Plea general issue and several special pleas, including accord and satisfaction; replication alleging waiver of defenses. Trial by jury, at the March Term, 1935, Orleans County, Cleary, J presiding. Verdict for the plaintiff and judgment thereon. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Hubert S. Pierce for the defendant.

Lee E. Emerson and Raymond L. Miles for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

SHERBURNE

This is an action of contract to recover upon a health and accident policy for illness and disability occurring about September 15, 1932, and resulting from duodenal ulcers. Verdict and judgment were for the plaintiff and the case comes here upon exceptions saved by the defendant. The only exception briefed is to the denial of defendant's motion for a directed verdict. On November 12, 1932, the defendant paid the plaintiff $ 116.66 for his disability to October 20, 1932. On January 11, 1933, the defendant gave the plaintiff a draft for $ 200.00, which he accepted, indorsed and cashed. As originally written it contained on its face, after the amount and above the signature, these words: "In full payment, satisfaction, discharge, com- promise and release of any and all claims of liability, which payee, his heirs or beneficiary now claim or might hereafter claim under Policy No. 68 V-7869 for or on account of injury or illness sustained by payee on or about September 15, 1932, and for any past, present or future loss or disability resulting from injury or illness sustained prior to this date." Before the plaintiff would accept it the words "From Oct. 20th to Dec. 20th, 1932," were added by the defendant at the insistence of the plaintiff.

No question is made but that the plaintiff had a disputed and unliquidated claim against the defendant and that the acceptance of the draft as originally written would have barred recovery for disability after December 20, 1932. But the...