State ex rel. Bishop v. Keating

Livestock — ^Tubercular Cattle — Destruction by State Authority —Compensation,—Accord cmd Satisfactionr^-Liquidated and Unliquidated Demands. Debt — Unliquidated Demands — Aeeord and Satisfaction. 1. Where a creditor accepts less in payment of an. unliquidated demand than the face of the claim, his acceptance constitutes an accord and satisfaction and is binding upon him. (Rev. Codes, secs. 4954, 4956.) Same — Liquidated Demand — How Discharged. 2. A liquidated demand can be discharged only by payment in full, or by payment of a less amount and acceptance thereof in writing. (Rev. Codes, sec. 4957.) [As to part payment with receipt in full as satisfaction of liquidated and undisputed debt, see note in Ann. Cas. 1917A, 130.] Same — Liquidated Demand — What Constitutes. 3. A demand is liquidated when the amount due is fixed by law or has been ascertained and agreed upon by the parties. Livestock — Destruction, by State Authority — Compensation—Liquidated Demand — Accord and Satisfaction. 4. The dem-and of an owner of tubercular cattle killed by state authority, the value of which had been agreed by the claimant and the slate auditor to have been their assessed value which is fixed by the statute (Chap. 140, Laws of 1915) as the value at which compensation shall be made, was a liquidated one, the character of whieh was not changed by the duty oast upon the auditor to examine the elaim as to its correctness.

Appeal from District Court, Missoula County; Asa S. Duncan/Judge. Proceedings by tbe State of Montana, on tbe relation of A. J. Bishop, against William Keating, as state auditor, to compel the defendant to allow a balance of his claim for damages for loss of tubercular cattle killed by order of the Livestock Sanitary Board. From a judgment directing a peremptory writ to issue, the auditor appeals. The general rule is that when a claim is presented to a board of county commissioners, or to a board of county supervisors, or to a state board, or to a county or state officer, for allowance and payment, and 'such elaim is allowed in part and rejected as to the remainder, and the claimant, knowing that a part of the claim has been rejected, receives and accepts the amount allowed, such allowance by the board or officer and acceptance by the claimant constitutes an accord and satisfaction fully executed, and the claimant cannot thereafter maintain any action for the amount of the claim rejected. (1 R. C. L., sec. 34, p. 198; City of Rawlins v. Jungquist, 16 Wyo. 403, 94 Pac. 464, 96 Pac. 144; YmapaA County v. O’Neill, 3 Ariz. 363, 29 Pac. 430; Brick v*. County of Plymouth, 63 Iowa, 462, 19 N. W. 304; Davey v. City of Big Rapids, 85 Mich. 56, 48 Ñ. W. 178; La Plata County v. Morgan, 28 Colo. 322, 65 Pac. 41; Pollman & Bros. Coal & S. Co. v. City of St. Louis, 145 Mo. 651, 47 S. W. 563; Qenung v. Waverly, 75 App. Div. 610, 77 N. Y. Supp. 581; People v. Board of Supervisors of Coriland County, 15 N. Y. Supp. 748; Pederson v. Tacoma, 86 Wash. 164, 149 Pac. 643; Edkin v. Nez Perces County, 4 Idaho, 131, 36 Pac. 702.) There is lacking here the first requisite of an accord — a meeting of the minds in agreement. Appellant is, therefore, met by these two considerations, either of which destroys his plea of accord and satisfaction even in the absence of a statute like ours, viz., (1) the agreed statement of facts utterly fails to show an accord, a meeting of the minds; and (2) an accord (if shown) by which an admitted claim amounting to $3,110 was to be discharged by the payment of $2,060 would be invalid for want of consideration. (1 Corpus Juris, 527; Weber v. Head Camp etc. of Woodmen of World, 60 Colo. 529, 154 Pac. 728; Matheney v. City of Eldorado, 82 Kan. 720, 28 L. R. A. (n. s.) 980, 109 Pac. 166; McIntosh v. Johnson, 51 Neb. 33, 70 N. W. 522; Schlessinger v. Schlessinger, 39 Colo. 44, 8 L. R. A. (n. s.) 863, 88 Pac. 970.) Every one of the authorities cited by appellant is disposed of by one, or both, of the following considerations, to-wit: (1) The claim involved was unliquidated or disputed, resulting in a bona fide controversy; (2) they all arise in states having no statute such as our section 4957.