Realty & Construction Corp. v. Bresnan

Adkins, J., delivered the opinion of the court. The declaration in this case* alleges that on or about May 2nd, 1919, the plaintiffs and the defendant (now appellees and appellant respectively) entered into a verbal agreement whereby the plaintiffs were to furnish to the* defendant labor and equipment, such as teams, plows, scoops and tools-, requisite to excavate, haul and remove earth from a certain tract of land situate at Guilford, and the defendant to pay the plaintiffs the current prices for labor and teams furnished and used in said excavation, hauling and removing of said earth, and to pay in addition ten per cent, of the cost of the ²⁷⁷ labor and teams so to be furnished; that the plaintiffs ha,ve done and performed all of the things required of them by said agreement, and have made demands on the defendant for the payment of the sum of money due them under the agreement, but the defendant has not paid the same. General issue pleas were filed and issue joined thereon. The jury rendered a verdict in favor of the plaintiffs and judgment was entered thereon, and the case is now before us on appeal from said judgment.

The single bill of exception is to the refusal of the court, to grant the following prayer of the defendant: The court instructs the1 jury that there has been offered no evidence legally sufficient to entitle the plaintiffs to recover, and the verdict of the jury must be for the defendant. The account filed with the declaration contained items running from May 6th to June 6th, 1919, amounting to $1,-956.97, on which there were credits amounting to $1,570, leaving a balance of $386.97, to which was added ten per cent, of $1,956.97, the cost of operation, $195.70, making the balance due $582.67, which is the amount of the judgment appealed from. There was, produced by the appellant at the trial a refceipted, itemized bill dated June 7th, 1919. This bill contained all the items in the account filed with the declaration down to and including May 30th, 1919.

Omitting here the items, and starting with the total, the receipted bill showed a,s follows: “Total amount...........................$1,380.90 By check May 24th...................... 500.00 $880.90 (In pencil) 15%........................ 207.14 $1,088.04 Received payment (in pencil) check 6/13... 500.00 ²⁷⁸ $588.04 (In pencil) Bill June 3rd, 'Whitelock & Brfld. 52.44 $640.48 By check 6/27 300.00 $340.48 “July 2/19 in full to date: “Timothy Bresnan & Sons, “Timothy Bresnan, Jr.” This balance of $340.48 was settled by a check of appellant for $270, which cheek when offered in evidence contained the words “in full Guilf,” which appellant explained meant in full for the work at Guilford under the agreement sued on. It was testified on behalf of the appellant that these words were on the check at the time it was given; and on behalf of appellees that the check did not contain them when it was received. There was evidence offered by the appellant that when the •above bill was presented there was considerable dispute about its correctness, and that the above check represented a compromise settlement in the nature of an accord and satisfaction of all outstanding matters between the parties; that the manager of appellant had the small item of $52.44, for a bill of June 3rd, for work at Whitelock Street and Brookfield Avenue, added to the bill so as to include all accounts in the settlement, and that there was no work done at Guilford after May 30th. Appellant contends that these facts, together with the words “July 2/19’ in full to date” on the bill, and the words “In full Guilf.” on the check is conclusive of its contention that there was an accord and satisfaction of all claims.

But on the other hand there is evidence on behalf of appellees that the only dispute about the bill was as to the item of fifteen per cent;; that the manager of appellant objected to