Truax v. Miller
| Decision Date | 18 January 1892 |
| Citation | 50 N.W. 935,48 Minn. 62 |
| Parties | TRUAX v MILLER. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
Verdict held not sustained by the evidence.
Appeal from district court, St. Louis county; STEARNS, Judge.
Action by Albert H. Truax against Andreas M. Miller on a contract for excavating. Judgment for plaintiff. Defendant appeals. Reversed.
Walter Ayers, for appellant.
Hollembaek & Wood, for respondent.
This action is brought to recover, among other claims, the balance claimed to be due upon a contract for excavating at specified prices per cubic yard for the foundation for a building in Duluth. By the terms of the contract plaintiff was to complete the work within 50 days from the date of it, and it was agreed that for every day's delay in completing it after the 50 the plaintiff should pay as liquidated damages, and not as a penalty, the sum of $100. It is conceded that there was a delay of 38 days after the expiration of the 50 days, though plaintiff now claims that the delay was caused by the fault of the defendant. He did not, however, make such claim to defendant till after the compromise hereinafter mentioned. Defendant pleads an accord and satisfaction as to all the claims in the complaint except one, as to which he pleads a tender, and the amount of which claim he brought into court. The principal evidence of the accord and satisfaction consisted of what purports to be the final estimate of the architects under which was a receipt in full signed by plaintiff. The estimate stated the amount of work and contract prices as follows:
The $2,935 was the amount paid plaintiff at the time he signed the receipt. Had damages for the delay been fully allowed, there would have been due plaintiff only $1,135, instead of the $2,935 paid him. It is evident, therefore, that there was deducted from plaintiff's claim for excavating $2,000 on account of the delay, and the oral evidence sustains the inference rasied upon the paper itself. The claim of ...
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