
    Duplantie v. The National Cash Register Co.
    (Decided January 20, 1932.)
    
      Mr. Irvin G. Delscamp, for plaintiff in error.
    
      Mr. B. N. Brumbaugh and Mr. Ezra Kuhns, for defendant in error.
   Allread, P. J.

W. E. Duplantie brought suit against the National Cash Register Company on August 27, 1930.

The suit was brought upon a verbal contract made in the year 1887. The contract was alleged to have been made by John H. Patterson,' Frank Patterson and Joseph Crane, for the Cash Register Company, for the payment of $20,000 as soon as the company “got on its feet.” This is equivalent to saying that the amount is payable in a reasonable time, and does not toll the statute of limitation. The services for which the contract provided were for the preparation and insertion of a dovetail key arrester, a bell and muffler. This was the alleged contract upon which recovery was sought. Payments were made in the amount of $6,300. The first payment of $1,000 was made on July 3, 1920; the second was made on July 10, 1920, for $4,000. Other payments were made some years later.

The defendant by answer asserts (1) a general denial; and (2) an accord and satisfaction.

On the trial Duplantie was called as a witness, and was the only witness whose testimony was presented. At the close of the testimony the trial court directed a verdict for the defendant, and judgment was rendered accordingly. Duplantie filed a petition in error to test the regularity of the verdict and judgment. The testimony of Duplantie as to the contract was as follows: “Q. Now, on April 15th, 1887, what conversation did you have with John Patterson, Joseph Crane and Frank Patterson when you went to their office? A. They told me. John H. Patterson said that we are having trouble with the machine. I said what’s the trouble, and he said come out in the factory and I will show you. I went out with John H. Patterson and he showed me the machine, and he showed me where the key didn’t register on the cylinder the amount of the purchase. He wanted to know if I could fix it. I said yes. He said — He called Joseph and Frank and he said he can fix it. He said we will give him $10,000.00. Frank said make it $20,000.00. So I put on the Dovetail Key Arrester. I was in a little room by myself, and the machine was what was known as the No. 24 Wood Frame Machine.” There is other testimony by Duplantie. This, however, is the substance of his testimony as to the contract.

After this alleged contract was made Duplantie pursued different and various lines of work — was employed by the cash register company for a few years, and then returned to other employments, which he pursued, not only in Dayton, but in different sections of the country.

Duplantie again came back to Dayton, and about the year 1928 or 1929 sought employment in the cash register company. In his letter to the company he did not mention the contract of 1887. Failing to receive the employment he then made an appeal for charity. This appeal was made on October 14, 1929. In this appeal he made a statement with reference to his services rendered to the dovetail key arrester in 1887. He says, “You said that if I could you would pay me well for my work.” This is the only instance of any claim being made to a contract, in any writing, during the many years from 1887 until this letter was written. The appeal to charity was the instrument by which John H. Patterson was reached. On July 3, 1920, a check and voucher was issued to Duplantie for $1,000. On the check there was this indorsement signed by Duplantie: “Payee’s endorsement shall constitute an acceptance of this check in full payment of account shown on statement bearing duplicate number and attached to this check when issued.”

The voucher was issued on the date of this check, stating that the check was issued as “part payment for services rendered in early days.” Seven days later, to wit, on July 10, 1920, another check for $4,000 was issued, payable to Duplantie, and this was stated to be “Final payment in full of account for work done for the N. C. R. Company.” Some six years later checks to the amount of $1,800 were issued by the National Cash Register Company to Duplantie, each of which provided for payment in full.

This suit was brought for recovery of the original sum of $20,000, with interest, after allowing the payments of $6,800. It is claimed that the first voucher and check for $1,000 had the effect of reviving the verbal contract, as against the statute of limitations, and also had the effect of making the original contract for the payment of $20,000 a liquidated claim.

We may concede that such check had the effect of reviving the claim as against the statute of limitations, but we cannot agree to the proposition that it was revived as a liquidated claim. In the first place the voucher check describes the claim as “part payment for services rendered in early days.” This did not contemplate a liquidated claim. In order to make the further claim that it was revived, not only as against the statute of limitations,' but so as to make the claim a liquidated one, would require a further statement that the payment was upon the contract for the payment of $20,000 for services in early days. The testimony of the plaintiff to the effect that the Pattersons made the contract originally for a payment of $20,000 is not sufficient of itself to show that Patterson revived this verbal contract for the payment of $20,000, or that he contemplated that the plaintiff was claiming under a verbal contract for payment of that amount. He must have known that the statute of limitations would bar relief upon such a contract, and as no claim had been made in any written communication to him we cannot escape the conclusion that the claim itself was not a liquidated claim at the time of the issuing of the check for $1,000 in 1920. The contention that a liquidated claim is not subject to a settlement for a smaller amount is a technical claim. It is laid down in 1 Ohio Jurisprudence, page 162, that “the rule is highly technical, and is looked upon with disfavor by the courts, and its operation confined to cases strictly within it.” The history of this rule is discussed by Mr. Justice Fuller in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Clark, 178 U. S., 353, 365, 20 S. Ct., 924, 928, 44 L. Ed., 1099, and the conclusion is thus stated: “The result of the modern cases is that the rule only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of part of it; and while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases within it.”

The case of Harper v. Graham, 20 Ohio, 105, is in point. Judge Eanney, on behalf of the court, rendered the opinion. That case was founded upon a judgment rendered in the courts of Ohio against Harper, the plaintiff in error. The authorities all show that a judgment standing alone is a liquidated claim. There, however, the defendant left the state after the rendition of the judgment and went to Arkansas. He offered to the plaintiff in Ohio a compromise of the judgment. The original judgment was for $1,716.96, and the costs were $52.99. He offered to pay $500 on the judgment, the costs in the case, and the attorney fees of the plaintiff’s attorney in the sum of $100. This was paid. The question was afterwards made whether this was a valid accord and satisfaction. It was held by Judge Eanney, speaking for the court, that the judgment was rendered because of the provisions therein for a payment of $100 to the plaintiff’s counsel. In the course of the opinion, at page 114 of 20 Ohio, Judge Eanney says: “It was very early set-tied as a rule of the common law, that the payment of less than the sum due upon a liquidated demand, although agreed to be received in full satisfaction, could not be insisted upon as such, because there was no valuable consideration to uphold the agreement to relinquish the balance. But if the party to whom the money was coming executed a release, under seal, for the same debt, he was effectually barred, although he should have received nothing upon it. The rule and the reason were purely technical, and often fostered bad faith. The history of judicial decisions upon the subject, has shown a constant effort to escape from its absurdity and injustice.”

This defense in the present case is a technical one, and is not to be enlarged, but is to be confined strictly to the facts of the case. Was there any defense to this claim for $20,000 at the time of the issuing of the check for $1,000 in 1920? We think counsel for the plaintiff in error ignores the fact that the claim on the express contract was not shown by any writing, and that the claim itself is so stale that the cash register company could have defended against the claim. It was in no sense a liquidated claim. It was at most a claim of such doubtful import that it was subject to a compromise. To hold that the issuing of the check concludes the cash register company from questioning the so-called liquidated claim for $20,000 ignores the situation of the original claim at the time of the payment of the $1,000. The claim for $20,000 was not a liquidated claim, and to the assertion of the claim the cash register company would have had a complete defense prior to the giving of said check.

In 20 L. R. A., 785, there is a note to the case of Fuller v. Kemp, Jr., decided by the New York Court of Appeals, 138 N. Y., 231, 33 N. E., 1034, and the purport of the note, as well as of the decision, is to the effect that any defense against the so-called liquidated claim before the payment is sufficient to destroy its character as to liquidation.

In our judgment there is no doubt that the claim upon the contract was not at the date of the issuance of said check a liquidated claim, and that it is not entitled to the status of liquidation after the issuance and payment of the check. It is urged that the case should at least have gone to the jury upon the question of liquidation, and that the court erred in deciding it as a matter of law. This question has been before the courts of this state, and it has been decided that where there is any doubt upon the issue of an accord and satisfaction the case must be submitted to the jury; but in a case where the facts are clear and undisputed the court may decide the question as a matter of law and instruct a verdict accordingly. The question here is whether the facts are so clear and undisputed as to justify the court in directing a verdict. We are of opinion that they are. The claim was undoubtedly a non liquidated claim. Even the evidence of the plaintiff did not tend to take the case out of this status prior to the issuance of the check on July 3, 1920. There is no effort to prove that the verbal status of the claim did not make the claim unliquidated, and that the issuance of the checks was confined to the status of the claim as then presented. We therefore reach the conclusion that the trial judge was within his rights in instructing the verdict.

Judgment affirmed.

Hornbeck and Ktjnkxe, JJ., concur.  