Toledo Edison Co. v. Roberts

Ohio Court of Appeals

Toledo Edison Co. v. Roberts

197 N.E. 500, 50 Ohio App. 74, 17 Ohio Law. Abs. 474, 3 Ohio Op. 446, 1934 Ohio App. LEXIS 335

CourtOhio Court of Appeals

DecidedMay 28, 1934

DocketNo 2948

StatusPublished

Cited by7 cases

This text of 197 N.E. 500 (Toledo Edison Co. v. Roberts) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Toledo Edison Co. v. Roberts, 197 N.E. 500, 50 Ohio App. 74, 17 Ohio Law. Abs. 474, 3 Ohio Op. 446, 1934 Ohio App. LEXIS 335 (Ohio Ct. App. 1934).

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Opinions

*475 OPINION

By RICHARDS, J.

A bona fide dispute existed, therefore, between The Toledo Edison Company and Roberts as to the commission to which he was entitled on the two jobs seemed from The Toledo Driving Park, Inc. Clearly, this constituted an unliquidated demand in favor of Roberts and against the company. Each of these parties honestly controverted the claim made by the other. The claim was not a liquidated one, because there was an honest dispute over the amount claimed to be due. It has long been settled that where it is admitted that one of two specified sums is due, but there is a dispute as to what is the proper amount, the demand is regarded as unliquidated, as applied to an action involving th® question of accord and satisfaction. The authorities on this subject are numerous and I cite only:

Hanley Co. v American Cement Co., 101 Conn., 469;

Railway v Clark, 178 U. S., 285;

Nassoy v Tomleson, 148 N. Y., 326.

Under these circumstances the company, having paid certain sums to Roberts, drew him a check on July 14, 1929 for $717.52, which they insisted was the balance due him and was computed at 5%; he, however, contendng that there was due him 4.% more than the amount of the check. The following words were printed on the back of- the check drawn to his order:

“My endorsement hereon is an acknowledgment of the payment to date of this check for services rendered to The Toledo Edison Company.”

Roberts accepted the check, erased the words above quoted, and endorsed the check, drawing th© money thereon. It was perfectly understood between them that the check was drawn for the amount which The Toledo Edison Company conceded remained due to Roberts on the Driving Park contracts. Th® erasure of the words printed on the back of the check could not avail Roberts. His • duty was to accept it as it was, or return it.

The case falls directly within the principle stated in Seeds, Grain & Hay Co. v Conger, 83 Oh St, 169, 1 Ohio Juris., 164, and the court should have granted the motion made at the conclusion of the evidence to direct a verdict in favor of the company. As a verdict should have been directed, •the other errors which are claimed to have been committed become- unimportant.

Judgment reversed and final judgment rendered for plaintiff in error.

LLOYD, J, concurs. WILLIAMS, J, noi participating.

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*475 OPINION

By RICHARDS, J.

A bona fide dispute existed, therefore, between The Toledo Edison Company and Roberts as to the commission to which he was entitled on the two jobs seemed from The Toledo Driving Park, Inc. Clearly, this constituted an unliquidated demand in favor of Roberts and against the company. Each of these parties honestly controverted the claim made by the other. The claim was not a liquidated one, because there was an honest dispute over the amount claimed to be due. It has long been settled that where it is admitted that one of two specified sums is due, but there is a dispute as to what is the proper amount, the demand is regarded as unliquidated, as applied to an action involving th® question of accord and satisfaction. The authorities on this subject are numerous and I cite only:

Hanley Co. v American Cement Co., 101 Conn., 469;

Railway v Clark, 178 U. S., 285;

Nassoy v Tomleson, 148 N. Y., 326.

Under these circumstances the company, having paid certain sums to Roberts, drew him a check on July 14, 1929 for $717.52, which they insisted was the balance due him and was computed at 5%; he, however, contendng that there was due him 4.% more than the amount of the check. The following words were printed on the back of- the check drawn to his order:

“My endorsement hereon is an acknowledgment of the payment to date of this check for services rendered to The Toledo Edison Company.”

Roberts accepted the check, erased the words above quoted, and endorsed the check, drawing th© money thereon. It was perfectly understood between them that the check was drawn for the amount which The Toledo Edison Company conceded remained due to Roberts on the Driving Park contracts. Th® erasure of the words printed on the back of the check could not avail Roberts. His • duty was to accept it as it was, or return it.

The case falls directly within the principle stated in Seeds, Grain & Hay Co. v Conger, 83 Oh St, 169, 1 Ohio Juris., 164, and the court should have granted the motion made at the conclusion of the evidence to direct a verdict in favor of the company. As a verdict should have been directed, •the other errors which are claimed to have been committed become- unimportant.

Judgment reversed and final judgment rendered for plaintiff in error.

LLOYD, J, concurs. WILLIAMS, J, noi participating.

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197 N.E. 500, 50 Ohio App. 74, 17 Ohio Law. Abs. 474, 3 Ohio Op. 446, 1934 Ohio App. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toledo-edison-co-v-roberts-ohioctapp-1934.

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