Summary
In O'Leary, supra, 258 Wis. 146, unlike in this case, the amount due was liquidated and not disputed. Consequently the court held that the "amounts due the plaintiff were certain and stated... [and] cashing a check marked `in full' did not constitute an accord and satisfaction."
Summary of this case from Flambeau Products v. Honeywell SystemsOpinion
November 8, 1950 —
December 5, 1950.
APPEAL from a judgment of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Modified and, as modified, affirmed.
For the appellant there was a brief by Kivett Kasdorf of Milwaukee, and oral argument by Austin W. Kivett.
For the respondent there was a brief by Hess, Chernov Gordon of Milwaukee, and oral argument by Ben L. Chernov.
Plaintiff brought suit for $161.18 for fees earned in reporting hearings conducted before the defendant as a court commissioner for Milwaukee county. The action was tried in civil court where judgment was rendered for the plaintiff. Upon appeal, the circuit court reviewed the record and affirmed the judgment. It is from that judgment of the circuit court that this appeal is taken.
A practical mind might question whether the amount involved and the moral issue justify the expense of this protracted litigation. The majority of the court is of the opinion that litigants should be unhampered and not discouraged. On this point there appears to be some authority. Kopplin v. Quade (1911), 145 Wis. 454, 130 N.W. 511.
The evidence in this case was in dispute, and sustains the civil court's finding that there was an oral agreement that defendant would pay plaintiff for his services as a court reporter. In view of this finding the amounts due the plaintiff were certain and stated. His' act of cashing a check marked "in full" did not constitute an accord and satisfaction.
The first item in plaintiff's account upon which this suit was brought was $11.60 earned in 1940. The suit not having been brought until 1948, the statute of limitations, sec. 330.19 (3), had run and the court should have disallowed that amount. The judgment is modified by deducting such amount therefrom. The respondent is entitled to costs.
By the Court. — Judgment modified by deducting $11.60 therefrom and, as so modified, is affirmed.