Ostrander v. Scott , 60 Ill. App. 322 ( 1895 )

Me. Justice Waterman

delivered the opinion of the Court.

Appellee had a claim against appellant, amounting to $5,282.58; the items of this were undisputed, but appellant claimed that he was entitled to be allowed the sum of $1,210 for commissions on goods sold. Such being the case, appellant sent to appellee his check, reading as follows:

“Chicago, Ill., Nov. 24, 1891.

Ho.-

The First Hational Bank of Chicago. Pay to the order of Walter Scott & Co., $4,072, four thousand seventy-two and 57-100 dollars. In full of all demands to date.

J. W. Ostrander.”

This was inclosed in a letter reading as follows:

“ Chicago, Nov. 24, 1891.

Walter Scott & Co., Plainfield, N. J.

Dear Sirs: Inclosed we hand you our check for $4,072.57 in full of account to date.

We inclose you bill of commission of presses sold in our territory before you notified us that we were no longer your agent, and as we had seen all these parties and had worked up the business, we are entitled to our commission.

Wishing you success, with kind regards, we remain,

jRespeetfully,

J. W. Ostrander.

C. W. Ostrander.

Dec. 1st. S.

P. S. We could mention other presses you sold, but as we are not working them up, we do not say anything about them.”

Appellee collected and kept the money called for by the check, returning to appellant the following reply :

“ Plainfield, N. J., Dec. 1,1891.

Mr. J. W. Ostrander, 77 Jackson St., Chicago, Ill.

Dear Sir: We have yours enclosing check for $4,072.57 which amount we place to your credit. We do not, however, accept that amount in full payment of our account, as we can not allow your claim of $1,210 for commission on presses sold by us and others. Our letter of March 11, 1890, sets forth on what terms and conditions we sold machines to you. We will expect you to remit the balance at an early date.

Tours truly,

Walter Scott & Co.”

To this appellant replied:

“ Chicago, Dec. 9, 1891.

Walter Scott & Co., Plainfield, N. J.

Gentlemen : In reply to your favor of the 1st inst., will say that we certainly intend the check sent you to be in settlement of our account in full; now if you do not want to accept it as such, you may return it.

We are entitled to a commission on sale mentioned.

We are, very respectfully,

J. W. Ostrander.

J. G. Ostrander.”

Whereupon appellant wrote(Letter December 17, 1891).

“ Plainfield, 17. J., December 17, 1891.

Mr. J. W. Ostrander, Chicago, Ill.

Dear Sir ; As we informed you in ours of the 1st inst„, we credit you with the amount of your check, $4,072.57, but not in full on your account. ■ The fact that you wish it so does not make it so, or is that any reason why you should not pay what is now long due. You are not entitled, to any commission on machines sold by us, or by others for us. See our letter of March 11, 1890, referred to in our last.

We shall expect you to remit the balance of account, $1,210, at an early date.

Yours truly,

Walter Scott & Co.”

Appellee brought suit and has received judgment for $1,210.

Where a debtor offers to his creditor a sum of money less than the amount of an unliquidated debt, accompanying his offer with the condition that the money, if received at all, must be received in full satisfaction of the debt, the payment taken under such condition will amount to a satisfaction; but the statement that the payment is conditional, and to he taken in full or not at all, must be such that the creditor does or can not have failed to understand it. Peterson v. Grant, 84 Vt. 201; Cole v. The Transportation Co., 26 Vt. 87; McDaniels v. The Bank of Rutland, 29 Vt. 230; Am. & Eng. Ency. of Law, Vol. 18, p. 154; Western Union Ry. Co. v. Smith, 75 Ill. 496; Rockford, R. I. & St. L. Ry. Co. v. Rose, 72 Ill 183.

It is the party making the offer, who, by his words and conduct, is seeking to settle for a less sum than is claimed to be due; and his conduct in so doing must be such as to clearly inform the other of what is sought and expected.

We do not regard the writing of appellant “in full of all demands to date ” and “ in full of account to date ” as sufficient to unmistakably inform appellee that the check was sent conditionally, and if accepted must be taken in full satisfaction; it was rather a statement that he, appellant, claimed that it covered the entire amount he owed.

The verdict and judgment of the Circuit Court is therefore affirmed.