Opinion
No. 3840.
Decided June 28, 1949.
A dissenting stockholder was not entitled to an appraisal of the value of her stock in a railroad under R.L., c. 296, ss. 25-39 where she had already accepted a check which according to a letter of transmittal was offered in full payment of her interest in the railroad upon its liquidation. Acceptance of a check operates as an accord and satisfaction of a disputed claim where the check or accompanying papers expressly state it is offered in full payment or the surrounding circumstances so indicate. In such case, the fact that the plaintiff conducted an investigation of the merits of her claim for appraisal of her stock in the liquidated railroad was admissible as evidence that she did not accept the check in full payment of her stock but only to the extent that her activities were communicated or made known to the defendant. A decision in a prior transfer is not res judicata of an issue raised for the first time in a second transfer of the same case, not presented by the pleadings, argued by counsel nor considered by the court in the first transfer and where all the facts upon which to determine the question was not then in the possession of the court.
PETITION, under R. L., c. 296, ss. 25-39, for valuation of stock and other relief by the plaintiff, a dissenting stockholder of the Concord and Portsmouth Railroad whose property and franchises were sold to the defendant in December, 1944 at a price equivalent to $50 a share with the approval of the Public Service Commission. The question whether the petition may be maintained under the circumstances disclosed in the agreed statement of facts was transferred without a ruling by Wheeler, J.
In January 1945 plaintiff received checks for her shares at the rate of $50 a share accompanied by a letter as follows:
"CONCORD AND PORTSMOUTH RAILROAD "150 Causeway Street Boston 14, Mass.
"To Each Stockholder of Record of the Concord and Portsmouth Railroad:
"Pursuant to the vote of its stockholders and of its directors on October 5, 1944, and as authorized by orders of the Interstate Commerce Commission and the Public Service Commission of New Hampshire, this corporation has now completed the sale of all of its property and franchises, except its right to exist as a corporation, to the Boston and Maine Railroad for the sum of $175,000. which is equal to $50. for each share of the outstanding capital stock of the corporation. The purchase price has been received and the directors of the corporation at a meeting held on December 29, 1944, have voted to liquidate the corporation and to distribute the entire amount of the purchase price among the corporation's stockholders proportionately and ratably according to their interests. It is contemplated that the corporation will eventually be dissolved.
"In accordance with the above, there is enclosed herewith a check for $ ____ which is the proportionate amount of the purchase price to which the _____ shares of stock of the Concord and Portsmouth Railroad, standing in your name on the books of the corporation, are entitled. You are requested to acknowledge receipt of this payment and forward to this office your certificate or certificates for the said _____ shares in order that they may be cancelled.
"EDWARD J. GALLAGHER TREASURER"
"January 2, 1945."
Two weeks later in the month the plaintiff wrote to the treasurer of the Concord and Portsmouth Railroad enquiring[inquiring] as to the reason for not receiving the six months' dividend due the first of the month and received a reply by letter the next day that the reason for the nonpayment of the dividend was the fact that the railroad's property was sold and liquidated December 29, 1944.
The plaintiff cashed the checks February 16, 1945 but did not acknowledge receipt of the payment of the checks and did not return her certificates of stock for cancellation as requested in the treasurer's letter quoted above. The Concord and Portsmouth Railroad was dissolved February 28, 1945 by legislative act (Laws 1945, c. 247) which contained no provision for suits thereafter instituted. In October and November of 1946 and January of 1947 demands on behalf of the plaintiff were made on the Concord and Portsmouth Railroad and the defendant for an appraisal of her stock or compensation for the difference between the amount paid and the alleged fair value of the stock. The present petition was instituted in February, 1947.
Charles F. Hartnett (by brief and orally), for the plaintiff.
McLane, Davis, Carleton Graf (Mr. Carleton orally), for the defendant.
It was decided in Hackett v. Railroad, ante, 45 that R.L., c. 296, s. 25, et seq as construed in Perkins v. Company, 90 N.H. 534, 536 entitled a dissenting stockholder of a railroad corporation to an appraisal of the value of the stock upon the sale and transfer of its assets to another railroad. Plaintiff claims that the decision in the first transfer of this case (ante, 45) is res judicata of the defense of estoppel raised in this proceeding. As the defendant correctly points out, this is not so for several reasons: "No issue of estoppel was presented by the pleadings, argued by petitioner's counsel nor considered by the Court. Furthermore, all the facts upon which to determine the question of an estoppel were not in the possession of the Court" in the former case.
It appears from the agreed statement of facts that the plaintiff conducted a considerable investigation of the details and merits of her claims for appraisal. In so far as these activities were not brought to the attention of either railroad or their representatives they are not binding upon or admissible against the defendant. As evidence that the plaintiff did not accept the checks in full payment, it was admissible only to the extent they were communicated or made known to the defendant. This is well settled in this state. Fitch Company v. Insurance Co., 82 N.H. 318, 319; Foley v. Foley, 90 N.H. 281, 284, and cases cited.
In order that a check may operate as an accord and satisfaction of disputed claim the check or accompanying papers must expressly state it is offered in full payment or the surrounding circumstances must so indicate. 6 Williston, Contracts (Rev. ed.), s. 1856. A reasonable interpretation of the letter accompanying the check in this case makes it clear that the check was offered in full payment of the plaintiff's interest in the property of the Concord Portsmouth Railroad. "The fair inference of fact that in accepting the check . . . the plaintiff accepted the conditions upon which it was tendered is not rebutted by any fact or circumstance of record. . . . Instead of notifying the defendant that the offer of full settlement was repudiated, the plaintiff did the thing best tending to indicate an intent to agree to the proposed accord." C. R. Construction Co. v. Manchester, 89 N.H. 506, 508-509. Under these circumstances it follows that the plaintiff cannot assert a further claim under the statute and the order here must be
Petition dismissed.
KENISON, J., dissented: DUNCAN, J., did not sit: the others concurred.
"It should be observed that the debtor must make it clear that the check which he sent is offered only on condition that it is taken in full payment." 6 Williston, Contracts (Rev. ed.) s. 1856. See also, 75 A.L.R. 905, 919. This is true either under the majority rule which holds the question whether there has been an accord and satisfaction is one of law or the New Hampshire and minority rule that it is a question of fact. C. R. Construction Co. v. Manchester, 89 N.H. 506; N.H. Annos. Restatement, Contracts, s. 420. Neither the checks cashed by the plaintiff nor the accompanying letter contained any condition or notation that they were to be accepted as full payment, as was true in the Manchester case, supra. The letter to stockholders stated it was a completed sale and liquidation as authorized by the Public Service Commission. But the approval of the Commission was subject to an express condition inserted for the benefit of dissenting stockholders: "In addition, should dissenting stockholders of the Concord Portsmouth obtain greater appraisals of their shares . . ., the Boston Maine will pay such appraised value though it exceeds $50 per share." 26 N.H.P. S.C. 234, 236 (1944).
The plaintiff was entitled to the benefit of this condition and obligation assumed by the defendant with the approval of the Public Service Commission. Even if the plaintiff's actions in this case were considered as an accord and satisfaction or an estoppel to deny it as against the dissolved Concord Portsmouth Railroad, it did not relieve the defendant of its additional undertaking to pay any excess value that might be found due a dissenting stockholder. Cf. Douglass v. Railroad, 72 N.H. 26, 31.