Bisbee v. Pulpit Farm Dairy , 78 N.H. 372 ( 1917 )

The defendants say their motion for a directed verdict should have been granted because it cannot be found (1) that any of the milk was up to standard; (2) that the agreement of September 1 was illegal; and (3) that the plaintiff did not accept the check in settlement of the account.

1. The evidence relevant to the issue whether the milk was up to standard was that it was all right when the city inspected it on August 31; that the defendants accepted it without complaint and used it in their business; and that notwithstanding they inspected it as it was unloaded from the cars they did not call the inspectors to testify as to its quality. This warrants the finding that all but five cans were up to standard.

2. It can be found that the defendants' treasurer told the plaintiff that he was liable to a criminal prosecution but that they would not appear against him if he would allow them one hundred dollars on the account.

In other words it can be found that the agreement of the defendants' treasurer not to appear against the plaintiff if he was prosecuted criminally was the consideration for the agreement evidenced by the receipt. It is elementary that if the consideration for the agreement was illegal the agreement itself was illegal.

3. The fact the plaintiff collected the check is not an answer to this suit unless he either agreed to accept it in settlement of the account (St. Pierre v. Company, 77 N.H. 599) or is estopped to deny that he so accepted it. Pike v. Buzzell, 75 N.H. 486. No one contends that he agreed to so accept it; consequently the question on this branch of the case is whether he is estopped to deny he so accepted it. The test to decide that question is to inquire whether he used ordinary care to notify the defendants that if they paid the check he would not accept the proceeds in settlement of the account; or to notify them that if they paid it he should treat the proceeds as a payment on account; for on the one hand while it is true, as the defendants contend, that if he used the check without doing what the ordinary man would have done to notify them that he would not accept it in settlement of the account, he cannot now be heard to deny that he so accepted it; on the other hand it is just as true that if they paid the check after they either knew or ought to have known that he refused to accept it in settlement of the account, they cannot now be heard to deny that they permitted him to treat the check as a payment on the account.

In considering whether the plaintiff' is estopped to deny he accepted the check in settlement, it is important to remember that the check was not a check within the ordinary meaning of that term, but a written instrument directing the bank on which it was drawn to pay $36.50 to the order of the plaintiff provided he executed the receipt on its back. It was reasonable, therefore, for the plaintiff to think that, if he erased the receipt before he deposited the check for collection, the bank would not pay it without notifying the defendants of what he had done and that it would be guided by them as to paying it. In short it can be found that the plaintiff did all the ordinary man would have done to notify the defendants that he would not accept the check in settlement of the account.

It follows, therefore, that there is evidence to warrant the finding that the plaintiff is not estopped to deny that he accepted the check in settlement of the account. This disposes of the defendants' exception to the court's refusal to give the requested instruction as well as of their exception to the court's denial of their motion for a directed verdict.

Exceptions overruled.

All concurred.