Treat v. Price

CourtSupreme Court of Nebraska
Citation47 Neb. 875,66 N.W. 834
PartiesTREAT v. PRICE.
Decision Date07 April 1896

47 Neb. 875
66 N.W. 834

TREAT
v.
PRICE.

Supreme Court of Nebraska.

April 7, 1896.



Syllabus by the Court.

1. The rule that, when a certain sum is due from one to another, the payment of a lesser sum is no discharge as to the remainder, notwithstanding an agreement to that effect, is founded upon the fact that the later agreement is without consideration. Such rule does not apply where the amount due is disputed or unliquidated.

2. The word “liquidated,” when used in this connection, means that the amount due has been ascertained and agreed upon by the parties, or is fixed by operation of law.

3. The rule does not apply where there is a bona fide dispute between the parties as to the sum justly due.

4. The fact that the sum paid is in such case only the amount that the debtor concedes to be due does not invalidate the settlement.

5. If a consideration is necessary to sustain a settlement made by the payment and receipt in full satisfaction of the sum which the debtor admits to be due, it is found in the fact that the creditor, by accepting such sum, thereby avoids the delay, expense, and labor of an accounting, and avoids threatened litigation.

6. Where a certain sum of money is tendered by a debtor to a creditor on the condition that he accept it in full satisfaction of his demand, the sum due being in dispute, the debtor must either refuse the tender or accept it as made, subject to the condition. If he accept it, he accepts the condition also, notwithstanding any protest he may make to the contrary.

7. A., being indebted to B. in an uncertain amount, sent to the C. Bank the amount which A. conceded to be due, with instructions to pay the sum to B., but only in full settlement, and on his signing a receipt to that effect. B., protesting that more was due, accepted the money, and signed the receipt, but caused the bank to send back, accompanying the receipt, a letter declaring that he only received the money on account, and not in settlement. Held that, by receiving the money, he had accepted the condition on which it was tendered, and that his protest availed nothing.

8. Held, further, that the terms of the receipt, and the refusal of the bank to pay the money except upon his signing it, were notice to him that the bank had no authority to pay it except on the condition that it should be received in full settlement.

9. An obiter dictum, in conflict with some of the foregoing statements, in Price v. Treat, 45 N. W. 790, 29 Neb. 536, disapproved.


Error to district court, Douglas county; Ferguson, Judge.

Action by Thomas Price against C. P. Treat. There was a judgment for plaintiff, and defendant brings error. Reversed.

[66 N.W. 834]

Cowin & McHugh and Munger & Courtright, for plaintiff in error.

Chas. O. Whedon and C. A. Baldwin, for defendant in error.


IRVINE, C.

Treat sued Price, alleging in one count that he had performed, under a contract with Price, certain grading work for a railroad, and asking judgment for an unpaid balance on account thereof, and, in another count, alleging the conversion by Price of certain tools used in the work. The district court entered judgment for the defendant on the pleadings. The plaintiff brought the case to this court on error, and the judgment of the district court was reversed. Price v. Treat, 29 Neb. 536, 45 N. W. 790. The former report of the case contains a sufficient statement of the pleadings. After the cause was remanded, there was a trial to a jury, resulting in a verdict and judgment in favor of the plaintiff for $10,372.13. The defendant now brings the cause here by petition in error. Recurring to the former opinion, it will be found that one of the defenses pleaded was that the defendant rendered to the plaintiff a statement of the account, and that the parties fully settled and adjusted the same, finding due the plaintiff $6,532.27, which sum was paid by defendant and accepted by plaintiff, in consideration whereof Price executed and delivered to defendant the following instrument: “Received from C. P. Treat $6,532.27, in full settlement of the within contract, and in full of all demands. In consideration of said payment already received by me, I hereby release him, and also the Fremont, Elkhorn & Missouri Valley R. R. Co. and the Chicago & Northwestern Ry. Co., from all claims, actions, or causes of action which have arisen, or may or can arise, to me against any or either of them, by reason of any connection I may have had with them heretofore. [Signed] Thomas Price. Dated May 21, '86. Witness: C. W. Mosher.” The reply, among other things, while admitting that plaintiff signed the receipt, denied that it was executed in full settlement, or that the money was received in settlement, and alleged that the money was paid and received merely on account, and with that agreement and understanding. Discussing these pleadings the writer of the

[66 N.W. 835]

opinion, in 29 Neb., 45 N. W., expressed himself to the effect that, the acceptance of a portion of the undisputed claim not being a bar to an action for the remainder, this case fell within that rule, because, to the extent of the payment made, the defendant admitted the amount to be due, and that this part was therefore not disputed; and the fact that plaintiff claimed a greater amount did not render the claim a disputed one. In this respect, we think, the former opinion was obiter, and of no controlling force on the present hearing. The reply had put in issue the allegation that the money had been tendered and received in full satisfaction. Judgment had gone for the defendant on the pleadings; and the question before the court was only...

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52 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...v. Teator, 38 N.Y. 561; Powell v. Jones, 44 Barb., 521; Hunter v. Com'rs., 62 A. 213; Morse v. Monroe, 30 Ga. 630; Frick v. Price, 66 N.W. 834; Oglesby v. Attrill, 105 U.S. 605; Comstock v. U.S. 9 Ct. Cl., 141; Taylor v. Patrick, 4 Ky. 168; Adele v. Prudhommo, 16 La. Ann., 343; Tard v. Tarr......
  • Pekin Cooperage Co. v. Gibbs, 202
    • United States
    • Supreme Court of Arkansas
    • October 26, 1914
    ...1089; 115 N.C. 120, 20 S.E. 208; 100 Mo.App. 599, 75 S.W. 178; 188 Mo. 611, 87 S.W. 981; 75 Ark. 354. See also 148 N.Y. 332; 145 Mo. 659; 66 N.W. 834; 166 Mo. 335; 83 O. St. 169, 32 L. R. A. (N. S.) 380. 3. If the staves belonged to Gibbs, and the milling company was acting as his agent, be......
  • Miller v. Miller, No. 32921
    • United States
    • Supreme Court of Nebraska
    • March 2, 1951
    ...of the decree. There was no accord and satisfaction on her part. See, Bliss v. Backemeyer, 122 Neb. 537, 240 N.W. 556; Treat v. Price, 47 Neb. 875; 66 N.W. 834; McIntosh v. Johnson, 51 Neb. 33, 70 N.W. 522; Wilson v. Wilson, 156 Ark. 415, 53 S.W.2d In applying the doctrine of laches the tru......
  • Swindell v. Youngstown Sheet & Tube Co., 2676.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 8, 1916
    ...178 U.S. 353, 372, 20 Sup.Ct. 924, 44 L.Ed. 1099; Redmond v. Atlanta & Birmingham Railway, 129 Ga. 133, 138, 58 S.E. 874; Treat v. Price, 47 Neb. 875, 883, 66 N.W. 834. It is not suggested that the amount was agreed on; and it is not shown how the increased license fee can be said to have b......
  • Request a trial to view additional results
52 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...v. Teator, 38 N.Y. 561; Powell v. Jones, 44 Barb., 521; Hunter v. Com'rs., 62 A. 213; Morse v. Monroe, 30 Ga. 630; Frick v. Price, 66 N.W. 834; Oglesby v. Attrill, 105 U.S. 605; Comstock v. U.S. 9 Ct. Cl., 141; Taylor v. Patrick, 4 Ky. 168; Adele v. Prudhommo, 16 La. Ann., 343; Tard v. Tarr......
  • Pekin Cooperage Co. v. Gibbs, 202
    • United States
    • Supreme Court of Arkansas
    • October 26, 1914
    ...1089; 115 N.C. 120, 20 S.E. 208; 100 Mo.App. 599, 75 S.W. 178; 188 Mo. 611, 87 S.W. 981; 75 Ark. 354. See also 148 N.Y. 332; 145 Mo. 659; 66 N.W. 834; 166 Mo. 335; 83 O. St. 169, 32 L. R. A. (N. S.) 380. 3. If the staves belonged to Gibbs, and the milling company was acting as his agent, be......
  • Miller v. Miller, No. 32921
    • United States
    • Supreme Court of Nebraska
    • March 2, 1951
    ...of the decree. There was no accord and satisfaction on her part. See, Bliss v. Backemeyer, 122 Neb. 537, 240 N.W. 556; Treat v. Price, 47 Neb. 875; 66 N.W. 834; McIntosh v. Johnson, 51 Neb. 33, 70 N.W. 522; Wilson v. Wilson, 156 Ark. 415, 53 S.W.2d In applying the doctrine of laches the tru......
  • Swindell v. Youngstown Sheet & Tube Co., 2676.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 8, 1916
    ...178 U.S. 353, 372, 20 Sup.Ct. 924, 44 L.Ed. 1099; Redmond v. Atlanta & Birmingham Railway, 129 Ga. 133, 138, 58 S.E. 874; Treat v. Price, 47 Neb. 875, 883, 66 N.W. 834. It is not suggested that the amount was agreed on; and it is not shown how the increased license fee can be said to have b......
  • Request a trial to view additional results

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