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judicated and determined in the present pro- | basis of 8,000 tons per month as damages from ceeding. Appellants were not parties to the stipulation, and it is claimed that, in assessing benefits against their property, the viewers had no right to take into consideration the damages awarded to the brewing

company.

The two ordinances were part of one general plan for the improvement of Hamilton avenue, and under the Act of May 16, 1891 (P. L. 71), benefits may be assessed against properties "in the neighborhood" of the improvement, while in Morewood Avenue (Chambers' Appeal) 159 Pa. 20, 28 Atl. 123, 132, it was held that properties situated on another street could not be assessed for benefits, yet it was nevertheless implied that properties on the line of the street improved may be so assessed, even though not immediately adjacent to the improvement. In Edsall v. Jersey Shore Boro., 220 Pa. 591, 597, 70 Atl. 429, 431, we said:

"Every part of a general scheme of improve ment which would affect the value of the land is proper for consideration. In Bond v. Philadelphia, 218 Pa. 475 [67 Atl. 805], which was a proceeding to assess damages caused by the change of grade of a street, we held that it was proper to admit evidence that the change was part of a general scheme of improvement, which included the establishment of a public park in the neighborhood."

its failure to order that quantity each month, mainder of the contract, the buyer ordered a and from December, 1911, and during the remaximum of 10,000 tons per month, which the seller refused to deliver, and at the expiration of the contract deducted damages for such shortages and sent its check for the difference, to which was attached a receipt "in full for the above account," followed by the words, "Do not detach papers; please sign and return promptly" but the seller cashed the check and did on the buyer's refusal to pay a balance claimed, not sign and return the attached receipt, and, brought suit therefor in which the buyer pleaded set-off, payment, and accord and satisfacquantity and place of shipments, the seller, in tion. Held that, until the buyer indicated the the absence of express designation of amount by the buyer, might insist upon the acceptance of the minimum quantity, and could assume that the buyer elected to take that amount.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 386-388.]

2. SALES 163-DELIVERY IN INSTALLMENTS

-CONTRACT-ELECTION.

ginning of the contract indicated his election to In such case the buyer's action at the betake the minimum quantity, and, by proceeding under such election, the rights and duties of both parties were established, and the buyer had no power to order a greater tonnage.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 386-388.]

3. SALES 163-DELIVERY IN INSTALLMENTS

-PAYMENT-CONSTRUCTION.

In such case the provisions requiring monthly shipments to be approximately equal was not a limitation of the provision fixing the quantity the buyer might elect to take, but was merely a guide in determining the monthly amounts the parties should be prepared to deliver and accept.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 386-388.]

This case was followed in Broad Street Widening, 225 Pa. 184, 74 Atl. 25. If the question was squarely before us, we would be impelled to hold that the viewers were justified in taking into consideration the entire scheme of the improvements made by the city in the neighborhood of the property benefited. But whether the properties of appel-4. lants were benefited by the improvement, and, if so, to what extent, were questions of fact, and the findings of the viewers in those respects were conclusive, unless appeal was taken therefrom. It is stated by counsel for appellee that appeals were taken by the present appellants, and are now pending. If so, all questions as to the assessment of damages

and as to whether the assessment of benefits against appellants was properly made can there be determined. Consideration of such questions here would be premature.

The assignments of error are overruled, and the order of the court below is affirmed.

(256 Pa. 295)

DIMMICK et al. v. BANNING, COOPER & CO., Ltd.

(Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. SALES 163-DELIVERY ON INSTALLMENTS

-ELECTION-PAYMENT.

AcCORD AND SATISFACTION PROMISE AND SETTLEMENT CEPTANCE OF PART OF DEBT.

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than the amount claimed, with knowledge that the debtor denies indebtedness beyond that amount, does not in itself constitute an accord and satisfaction.

The mere fact that a creditor receives less

[Ed. Note.-For other cases, see Accord and and Settlement, Cent. Dig. §§ 12, 13. Satisfaction, Cent. Dig. §§ 67-72; Compromise

For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.]

5. ACCORD AND SATISFACTION 11(2)-WHAT CONSTITUTES.

To establish an "accord and satisfaction," payment should be offered in full satisfaction of the debt and be accompanied by acts and declarations amounting to an express notice that payment is conditional, and, if accepted must be received in satisfaction.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 76, 77.] 6. ACCORD AND SATISFACTION_11(2)-PAYMENT BY CHECK-TERMS OF RECEIPT.

A buyer's check attached to a receipt "in full for the above account" did not amount to an Plaintiff agreed to sell approximately 96,000 accord and satisfaction, where there was no exto 120,000 tons of coke between July 1, 1911, press statement in the attached letter that the and June 30, 1912, shipments to be made in letter and check were to be considered as a comabout equal monthly quantities of 8,000 to 10,- promise of the claim, or that it was tendered as 000 tons as specified by the buyer, and during such, or that acceptance thereof would be conthe first five months the quantity ordered was sidered a waiver of the seller's right to the balless than the amount called for by the con- ance of its claim, but, on the contrary, expressly tract, though the buyer made settlement on the stated that payment was made in settlement "of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the difference between" the amount of the seller's claim and the buyer's loss.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 76, 77.] 7. ACCORD AND SATISFACTION

TENTION-BURDEN OF PROOF.

11(2)— IN

In such case, the burden was on the buyer to expressly inform the seller of his intention that the check, if accepted, was to be regarded as a satisfaction of the claim.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 76, 77.]

Appeal from Court of Common Pleas, Allegheny County.

Assumpsit for the breach of a contract for the sale of coke by J. K. Dimmick and M. Rea Gano, copartners trading as J. K. Dimmick & Co., selling agents for Francis Rocks and Sunshine Coal & Coke Company, to the use of J. K. Dimmick, M. Rea Gano, and F. D. Dimmick, copartners trading as J. K. Dimmick & Co., selling agents for Francis Rocks and Sunshine Coal & Coke Company, to the use of J. K. Dimmick, copartners trading as J. K. Dimmick & Co., against Banning, Cooper & Co., Limited. Verdict for plaintiffs for $8,365.15, and judgment thereon, and defendant appeals. Affirmed.

of the period for which the contract ran the price continued to advance, and defendants ordered the full maximum of 10,000 tons per month. Plaintiffs failed to deliver the full amount ordered, and at the expiration of the contract were short in their shipments to the extent of 24,658 tons. Defendants wrote plaintiffs, notifying them of their intention to deduct, from the final payment for coke shipped, damages for the shortages in shipments, and later again wrote plaintiffs, inclosing an itemized statement of the shortages claimed,

The

and inclosed a check for the difference. second letter also contained a voucher with an itemized statement of all coke unpaid for, a credit of the shortages in each monthly shipment, and the total damages deducted from the amount due, showing a balance represented by the amount of the check. At the foot of the voucher was a receipt "in full for the above account," followed by the words "do not detach papers; please sign and return promptly." The letter, check, and voucher were attached together with a paper fastener. Plaintiffs cashed the check, but did not sign or return the receipt, and subsequently wrote defendants, requesting payment of the balance. Upon defendants' refusWAL-al to pay, this action was brought, the de

Argued before BROWN, C. J., and MES-
TREZAT, POTTER, FRAZER, and
LING, JJ.

J. Merrill Wright and H. F. Stambaugh,
both of Pittsburgh, for appellant. Charles
Alvin Jones and Sterrett & Acheson, all of
Pittsburgh, for appellees.

FRAZER, J. Plaintiffs agreed to sell and ship coke to defendants under a contract, which, so far as material to the question here involved, provided that:

"The seller hereby sells and agrees to ship to the buyer, and the buyer agrees to purchase and receive approximately ninety-six thousand (96,000) to one hundred and twenty thousand (120,000) net tons of 2.000 pounds each of standard 48-hour Connelsville coke, during the period beginning July 1st, 1911, and expiring June 30th, 1912, shipments to be made as hereinafter set forth."

And, further, that:

fense being set-off, payment, and accord and satisfaction by reason of the acceptance of the check. At the trial plaintiffs offered evidence to show their failure to ship the full amount of tonnage ordered was due to the insufficient production of their mines and their inability to obtain ample labor to operate their mines at full capacity, averring they were relieved by these circumstances under a clause in the contract providing that shipments were subject to "fires, strikes, accidents, car supply or any causes beyond the control of either buyer or seller." This testimony was submitted to the jury, with instructions that if plaintiffs were prevented from performing their contract by causes beyond their control, and defendants were giv. en a fair pro rata share of plaintiffs' actual production, plaintiffs were entitled to recover the full amount of their claim. The jury re turned a verdict for plaintiffs for $8,365.15, and, as the total amount of their claim was $13,561.90, they apparently found against At no time was there any specific total or plaintiffs on this question. A motion for a monthly amount fixed by defendants. Or- new trial and for judgment non obstante ders, however, were given from time to time veredicto followed, and a new trial ordered. in various amounts, and during the first five By subsequent agreement of counsel, howmonths the quantity ordered was less per ever, the motions for a new trial and judgmonth than the minimum called for by the ment non obstante veredicto were reinstated contract. In these months, defendants made and the rule for a new trial withdrawn. A settlement with plaintiffs by paying an stipulation was then filed, in which the paragreed price per ton as damages suffered ties fixed the correct amount of plaintiffs' through defendants' failure to order the claim, less defendants' counterclaim for damminimum monthly quantity of 8,000 tons. ages in so far as plaintiffs failed to ship the During this time the market price for coke minimum quantity of 8,000 tons per month, was less than the price called for in the at $7,400, whereupon the rule for judgment contract. In December 1911, the market non obstante veredicto was overruled, and price became higher, and during the balance judgment entered in favor of plaintiffs for

"Shipments are to be made in about equal monthly quantities of eight thousand (8,000) to ten thousand (10,000) tons as specified by the buyer, and the coke is to be shipped to any point or points that the buyer may elect."

this amount.
tion are those relating to the refusal of the
court to enter judgment for defendants non
obstante veredicto because of plaintiffs' fail-
ure to ship the full maximum amount of ton-
nage ordered by defendants.

The questions for considera- faction of the whole balance due plaintiffs.
The mere fact that a creditor receives less
than the amount claimed, with knowledge
that the debtor denies indebtedness beyond
that amount, does not in itself constitute an
accord and satisfaction. Amsler v. McClure,
To establish
238 Pa. 409, 414, 86 Atl. 294.
accord and satisfaction, payment should be
offered in full satisfaction of the demand,
and be accompanied by acts and declarations
amounting to express notice that the pay-
ment is conditional, and, if accepted, must
be received in satisfaction of the claim. So-
cieté Anonyme Pour La Fabrication De La
Soie De Chardonnet v. Loeb, Lipper & Co.,
239 Pa. 264, 86 Atl. 798; Foye v. Lilley Coal
& Coke Co., 251 Pa. 409, 417, 96 Atl. 987.

[1-3] The contract is an entire one for a
quantity of coke between specified maximum
and minimum amounts, to be shipped in
"about equal" monthly installments as speci-
fied by the buyers, and to such places as may
be designated. Until the buyers indicated
the quantity and place of shipment, the sell-
ers could do nothing. The burden of making
the first move was, by the express terms of
the contract, placed on defendants. At their
option they might take the entire amount of
96,000 tons, or the maximum amount of 120,-
000 tons, or any intermediate quantity. The
vendors were bound to hold themselves in
readiness to make shipments as ordered up-
on receiving notification by the purchasers
of the quantity they elected to take. In the
absence of express designation of amount by
the purchasers, the vendors might insist up-
on acceptance of the minimum quantity of
96,000 tons, approximating 8,000 tons month-
ly, and consequently were entitled to assume
this to be the amount the purchasers elected
to take, and they were bound to be prepared
to make deliveries on this basis. Both par-
ties recognized and adopted the minimum
quantity as the basis of their dealings, and
for the first five months made settlement ac-
cordingly, the purchasers paying damages
founded upon quantities less than the mini-
mum. This mutual construction of the agree-
ment acquiesced in for such length of time is
the best evidence of the intention of the par-
ties, and neither can now insist upon a dif-
ferent interpretation of its terms. Sherman
v. Consolidated Dental Mfg. Co., 202 Pa. 446,
52 Atl. 1. The provision requiring monthly
shipments to be approximately equal is an
important one in a contract of such magni-
tude; otherwise performance by the vendors
might be made impossible if the vendees
should call in any one month for a large de-
livery. This provision accordingly cannot
properly be construed as a limitation or qual-
ification of the first paragraph of the con-
tract fixing the quantity the purchaser might
elect to take. It is merely a guide for the
parties in determining the monthly amounts
they must be prepared to accept and deliver.
The action of defendants at the beginning of
the contract indicated an election on their
part to take the minimum called for in the
contract, and for five months they proceeded
under such election. The rights and duties
of the parties thus became established, and
defendants were without authority at a sub-
sequent time, unless with the consent of
plaintiffs, to change the tonnage so fixed.

[4] The circumstances under which the payment by defendants was made and accepted do not constitute an accord and satis

[5-7] The letter written by defendants contained an account and concluded with the statement:

"We therefore beg to inclose herewith voucher and check for $2,042.51, being the difference between our loss of $13,561.70 and your invoices of May and June shipments. Kindly sign voucher, returning same, and oblige."

The check was in the ordinary form. The voucher merely set forth the items showing the balance due from defendants, from which was deducted the amount claimed by them as damages. The receipt at the end was “in full for the above account." This is the only clause on which a claim of accord and satis

We find no express

faction can be based.
statement in the letter or elsewhere to the
effect that the check, if accepted, would be
considered as a compromise of the claim, or
that it was tendered as such, or that accept-
ance thereof would be considered a waiver
of plaintiffs' right to the balance of their
claim. On the contrary, the letter expressly
states the payment was made in settlement of
"the difference between" the amount of the
plaintiffs' claim and defendants' loss.
view of this statement, the clause in the re-
ceipt, reciting the check to be "in full for the

In

above account," merely amounts to a receipt in full for the balance of the account, and leaves no room for the contention of a tender as a compromise in settlement of the entire claim of plaintiffs. The letter and receipt together, therefore, lacked the essential element of notice of a tender in full satisfaction of plaintiffs' claim. This may, in fact, have been the intention of defendants. The burden, however, was on them to expressly inform plaintiffs of such intention, either by express words or by circumstances conclusively establishing such intention. Not having done so, their check was merely a payment of part of the undisputed claim, and does not bar plaintiffs from suing for the balance. The case on its facts is similar to Ziegler v. McFarland, 147 Pa. 607, 23 Atl. 1045, where plaintiff held defendant's note given for the purchase money of a horse, and in paying the note defendant remitted a certain sum in cash and a receipted bill for the use of the horse while in plaintiff's hands,

J. Ward Carver, of Barre, for plaintiff. E. R. Davis, of Barre, for defendant.

the two amounts aggregating the face of ceptions from a separate judgment against the note. There was no express statement, him. Reversed, with costs. however, that payment was made on condi- Argued before WATSON, C. J., and tion that the amount remitted should be ac- HASELTON, POWERS, TAYLOR, and cepted in full for the note, and it was held MILES, JJ. there was no accord and satisfaction. Polin v. Weisbrot, 52 Pa. Super. Ct. 312, was a dispute over the correct amount of plaintiff's bill, and the communication stated the accompanying check was sent in settlement of the account in accordance with the statement submitted, with the words at the bottom, "Please receipt and return." In the present case the letter merely contained notice that the check was in payment of "the difference between" plaintiffs' account which was admitted and a demand arising by way of set

off or counterclaim. Under these circum

stances we must hold the notice to plaintiffs was insufficient to establish an acceptance of the check as a payment of the balance of

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MILES, J. This case comes here from the Barre city court on exception by defendant Mann. The action is against him and Johnis the general issue, and the trial and facts son jointly in general assumpsit. The plea found were by the court, and judgment was rendered severally against each defendant,

against Johnson for $155, and against Mann for $157. The specifications were in two items, one of which was for $155 for labor and material furnished to defendants joint

ly, and the other item was for $2 for labor

and material furnished Mann on his own individual account.

The findings briefly stated are that Johnson entered into a contract with Mann to build on his land four houses, and in the performance of that contract Johnson hired the plaintiff to do the plastering and furnish the material for the same, for which Johnson was to give the plaintiff $620 for the entire job, to be paid for as each house was completed. Upon the completion of the first house Mann paid Johnson $100, which was immediately passed by Johnson to the plaintiff in the presence of Mann, and afterwards Mann gave Johnson his check for $55, which Johnson indorsed and passed over to the plaintiff in full payment for labor and material furnished for the first house. After

[Ed. Note. For other cases, see Frauds, Stat-wards and before the plaintiff commenced ute of, Cent. Dig. §§ 47, 48.]

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work on the second house, Mann met the plaintiff on the street and told him that he (Mann) "was in a hurry to get the second house finished, and he wished he would go down and do it at once, and he would see that it would be settled for"; that the plaintiff then understood that Mann was to pay him as soon as the second house was completed; that after he had finished plastering the second house, at different times, he requested payment, which was refused by Mann; that there was no evidence showing a rescission or repudiation of the contract between plaintiff and Johnson; that there was no other agree ment between plaintiff and Mann than what occurred on the street above stated, and that the charge against Mann is for one-fourth of what the plaintiff was to receive from Johnson for the four houses; that there was no evidence in the case that the plaintiff would not have done the work upon the second

house if he had not had the talk with Mann

Exceptions from City Court of Barre; H. upon the street, above stated; that the plainWilliam Scott, Judge.

Action by Antonio Conti against Harry F. Johnson and another. Judgment for plaintiff, and the unnamed defendant brings ex

tiff did the work upon the second house relying upon the credit of Mann and his promise to see him paid for it; that the item of $2 was against Mann personally; that Mann

When

was upon the premises from time to time | really fulfilling an obligation of his own. during the work upon both houses, and knew carried further than this, the statute is really repealed." that the work was being done and material furnished by the plaintiff.

The court further along in the opinion

says:

"If the leading purpose and object be to guarantee, or become responsible for the payment of a third person's debt, then the promise is within the statute, although it may be founded upon a consideration directly between the parties."

At the close of all the evidence Mann moved for judgment on the ground that he could not be held on a verbal promise to pay the debt of another. The motion was overruled, and Mann was allowed an exception. He also excepted to the finding that he promised To show that the following cases are in to pay the $155 on the ground that there was no evidence supporting it, and because no harmony with the above rule, the court careseparate judgment could be rendered against fully analyzes French v. Thompson, 6 Vt. 54, joint defendants, and that no judgment could Lampson v. Hobart, 28 Vt. 697, Cross v. be rendered in such suit for the Independent Richardson, 30 Vt. 641, and Templeton v. debt of one of the defendants. The tran- Bascom, 33 Vt. 132; cases, sometimes referred script is made a part of the exceptions. No to as authority that where the promisor reexception was taken by Johnson to the judg-ceives a new and valuable consideration, the ment against him.

promise, though collateral, is not within the statute, and shows that they are cases when rightly considered, not in conflict with the rule laid down in Fullam v. Adams. In the same line with Fullam v. Adams, supra, are Cole v. Shurtleff, 41 Vt. 311, 98 Am. Dec. 587, People's Bank v. Adams, 43 Vt. 195, Durant v. Allen, 48 Vt. 58, Bailey v. Bailey, 56 Vt. 398, Garfield v. Insurance Co., 69 Vt. 549, 38 Atl. 235, Keyes v. Allen, 65 Vt. 667, 27 Atl. In Garfield v. Insur319, and 20 Cyc. 164.

Taking up the exceptions in the order in which the defendant treats them in his brief, we first consider his motion for a judgment. The motion is based upon the ground that the alleged promise is within the statute of frauds, and is without consideration. It is well settled in this state that a verbal promise to pay the debt of another, as a general rule, is collateral, if the debtor, after the promise is made, continues liable, and that such promise is within the statute of frauds.ance Co., supra, the scope of the holding in In Anderson v. Davis, 9 Vt. 136, 31 Am. Dec. Fullam v. Adams is thus explained: 612, Collamer, Judge, says:

"If the defendant became holden to the plaintiff for this claim against Lamb," the debtor "as collateral to Lamb, and the claim still remained against Lamb, it was within the statute. But if the defendant was to assume the debt, and he, alone, to be holden, and Lamb to be discharged, then the contract was not collateral, but independent, and not within the statute."

In Sinclair v. Richardson, 12 Vt. 33, Collamer, J., says:

"When an agreement is auxiliary to a subsist ing agreement, which remains in force for the party now claiming on the new contract, then the new contract is collateral to the other, and must be in writing. It is within the statute. But when the first contract is rescinded, superseded or abandoned, so as not to be in force in the plaintiff's favor, then the new contract is independent and is not within the statute."

In Newell v. Ingraham, 15 Vt. 422, Bennett, J., says:

"The rule is well settled that when the promise is ancillary to, and in aid of, the promise of another, it is within the statute of frauds. This will always be the case, where there is no new and independent consideration, and there exists another, and a previous liability."

In Fullam v. Adams, 37 Vt. 391, a leading case, very fully and carefully considered, the court affirms the doctrine laid down in the foregoing cases as a general rule, and states the exceptions to that rule, and sums up as follows:

"We know of no case in this state where the parol promise of one to pay the debt of another has been upheld upon any other consideration than the receipt of some fund or other security, cither from the debtor or creditor, charged with the payment of the debt, so that a trust or duty was created thereby to pay the debt, and so that in making the payment of the debt he was

"When the agreement is one which leaves the original obligation in force, it is to be regarded as collateral, unless the promisor receives something from the debtor to be applied upon the obligation, so that it becomes the duty of the promisor, as between him and the debtor, to make the payment."

[1, 2] No claim can be made in this case but that Johnson's liability continued the same after the alleged promise as before, because the plaintiff has taken a judgment against him in the same matter in which he seeks to hold Mann, and the case shows that the alleged promise was without consideration; that under his contract with Johnson the plaintiff was already bound to do what he did do, and nothing appears in the case that the plaintiff did otherwise than he would have done if no promise had been made by Mann; nor does the case show that the plaintiff in any way became liable to Mann on account of the alleged promise, and the plaintiff makes no claim that there was any consideration put into the possession of Mann with which to pay the plaintiff's demand against Johnson. The alleged promise, therefore, was collateral and within the statute; besides the evidence was not such as to support the finding that Mann promised to pay the plaintiff for the plastering of the second house, and Mann's motion for judgment in his favor should have been granted. That the plaintiff understood that Mann was to pay him and relied upon that understanding does not necessarily charge Mann. To have charged Mann because of the plaintiff's understanding, Mann must have said or done something to justify such (Pocket v. Almon

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