Whittaker Chain Tread Co. v. Standard Auto Supply Co.

• Decision Date: 13 December 1913
• Citation: 216 Mass. 204,103 N.E. 695
• Parties: WHITTAKER CHAIN TREAD CO. v. STANDARD AUTO SUPPLY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 204

103 N.E. 695

WHITTAKER CHAIN TREAD CO. v. STANDARD AUTO SUPPLY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

December 13, 1913

COUNSEL

Ralph M. Smith, of Boston, for plaintiff.

John E Crowley, of Boston, for defendant.

OPINION

LORING J.

The plaintiff sold and delivered to the defendant goods to the amount of $80.03. The defendant undertook to return a part of the goods sold, of the value of $50.02. The plaintiff disputed its right to do so and refused to receive the goods from the teamster through whom the defendant undertook to make the return. While matters were in this condition the defendant sent the plaintiff a check for $30.01, which was admittedly due and which the defendant stated was in full settlement of the account. The plaintiff cashed the check and on the following day notified the defendant that it had done so, and demanded payment of $50.02, the balance claimed by it to be due after crediting the amount of the check as a payment on account. The judge found that the defendant had no right to return the goods which it attempted to return, and that the plaintiff was entitled to recover the $50.02 due from them unless it was barred by cashing the check.

Cases in which debtors have undertaken to force a settlement upon their creditors by sending a check in full discharge of a disputed account have given rise to more than one question upon which there is a conflict in the authorities.

In Day v. McLea, 22 Q. B. D. 610, it was decided by the Court of Appeal in England that a creditor who cashes a check sent in full settlement is not barred from contending that he did not agree to take it on the terms on which it was sent if at the time he accepts it he says that he takes it on account. The ground of that decision was that to make out the defence of accord and satisfaction the debtor must prove an agreement by the creditor to take the sum paid in settlement of the account, and that if the creditor in taking the check notifies the debtor that he accepts it on account and that he refuses to accept it in full settlement, the debtor as matter of law has not proved an agreement on the part of the creditor to accept the check in satisfaction of the claim but that that question must be decided by the jury. This doctrine is upheld in 17 Harvard Law Review, at page 469, and in the case of Goldsmith v. Lichtenberg, 139 Mich. 163, 102 N.W. 627. See also in this connection Krauser v. McCurdy, 174 Pa. 174, 34 A. 518; Kistler v. Indianapolis & St. Louis R. R., 88 Ind. 460.

But the true rule is to the contrary. The true rule is put with accuracy in Nassoiy v. Tomlinson, 148 N.Y. 326, 331, 42 N.E. 715, 716 (51 Am. St. Rep. 695) in these words: 'The plaintiff could only accept the money as it was offered, which was in satisfaction of his demand. He could not accept the benefit and reject the condition, for if he accepted at all it was 'cum onere.' When he indorsed and collected the check referred to in the letter asking him to sign the inclosed receipt in full, it was the same, in legal effect, as if he had signed and returned the receipt, because acceptance of the check was a conclusive election to be bound by the condition upon which the check was offered.' And to that effect is the weight of authority. Nassoiy v. Tomlinson, 148 N.Y. 326, 42 N.E. 715, 51 Am. St. Rep. 695; Washington Gas Co. v. Johnson, 123 Pa. 576, 16 A. 799, 10 Am. St. Rep. 553; Partridge Lumber Co. v. Phelps-Burruss Lumber & Coal Co., 91 Neb. 396, 136 N.W. 65; Neely v. Thompson, 68 Kan. 193, 75 P. 117; Hull v. Johnson, 22 R.I. 66, 46 A. 182; Cunningham v. Standard Construction Co., 134 Ky. 198, 119 S.W. 765; Canton Coal Co. v. Parlin, 215 Ill. 244, 74 N.E. 143, 106 Am. St. Rep. 162; Petit v. Woodlief, 115 N.C. 120, 20 S.E. 208; Pollman & Bros. Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651, 47 S.W. 563; Potter v. Douglass, 44 Conn. 541; Cooper v. Yazoo & Mississippi Valley R. R., 82 Miss. 634, 35 So. 162; Barham v. Kizzia, 100 Ark. 251, 140 S.W. 6; Thomas v. Columbia Phonograph Co., 144 Wis. 470, 129 N.W. 522; Sparks v. Spaulding Mfg. Co. (Iowa) 139 N.W. 1083. See also in this connection McDaniels v. Bank of Rutland, 29 Vt. 230, 70 Am. Dec. 406; Hutton v. Stoddart, 83 Ind. 539; Creighton v. Gregory, 142 Cal. 34, 75 P. 569.

Indeed the decision in Day v. McLea, ubi supra, was explained by the Court of Appeal in the recent case of Hirachand v. Temple, [1911] 2 K. B. 330, and made to rest not on the lack of agreement, but on the lack of consideration.

But in cases (like the case at bar) where there is a dispute as to the amount due under a contract and payment of an amount which he (the debtor) admits to be due (that is to say, as to which there is no dispute) is made by the debtor in discharge of the whole contract, further and other questions arise.

The question whether the creditor who under these circumstances accepts such a payment, protesting that he takes it on account, is or is not barred, is a question upon which again the authorities are in conflict. It was held in the following cases that a creditor in such a case is barred: Nassoiy v. Tomlinson, 148 N.Y. 326, 42 N.E. 715, 51 Am. St. Rep. 695; Ostrander v. Scott, 161 Ill. 339, 43 N.E. 1089; Tanner v. Merrill, 108 Mich. 58, 65 N.W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687; Neely v. Thompson, 68 Kan. 193, 75 P. 117; Treat v. Price, 47 Neb. 875, 66 N.W. 834; Hull v. Johnson, 22 R.I. 66, 46 A. 182; Cunningham v. Standard Construction Co., 134 Ky. 198, 119 S.W. 765; Pollman & Bros. Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651, 47 S.W. 563. See also in this connection Chicago, Milwaukee & St. Paul Ry. v. Clark, 178 U.S. 353, 20 S.Ct. 924, 44 L.Ed. 1099. But in the following cases it was held that he was not barred: Demeules v. Jewel Tea Co., 103 Minn. 150, 114 N.W. 733, 14 L. R. A. (N. S.) 954, 123 Am. St. Rep. 315; Seattle, Renton & Southern Ry. v. Seattle-Tacoma Power Co., 63 Wash. 639, 116 P. 289; Prudential Ins. Co. v. Cottingham, 103 Md. 319, 63 A. 359. See also in this connection Chrystal v. Gerlach, 25 S.D. 128, 125 N.W. 633; Robinson v. Leatherbee Tie & Lumber Co., 120 Ga. 901, 48 S.E. 380; Walston v. F. D. Calkins Co., 119 Iowa, 150, 93 N.W. 49; Weidner v. Standard Life & Accident Ins. Co., 130 Wis. 10, 110 S.W. 246; Louisville, N. A. & C. Ry. v. Helm & Bruce, 109 Ky. 388, 59 S.W. 323.

The decision in most of these cases was made to turn upon the question whether payment of the amount admitted to be due without dispute did or did not constitute a valid consideration for the discharge of the balance of the debt about which there was a dispute. If that were the only question involved in the case at bar it would be necessary to consider whether Tuttle v. Tuttle, 12 Metc. 551, 46 Am. Dec. 701, is in conflict with the well settled law of the commonwealth that a promise to pay one for doing that which he was under a prior legal duty to the...