Western Union Railroad v. Smith

Citations

• 75 Ill. 496

Syllabus

<p>1. Settlement—taking payment under protest not a settlement or estoppel. Where, on an attempt to adjust and settle an account, the defendant allowed the plaintiff such items and sums as he supposed to be right, wholly ignoring the plaintiff's other claims, and paid the plaintiff on the defendant’s own views of what was just and proper, which was received under protestation that it was not enough, without giving any release or discharge, it was held that this was not a final settlement, and that the acceptance of the money offered could not operate as an estoppel upon the plaintiff, and thus preclude him from suing for and recovering any balance that might be shown to be due him.</p> <p>2. Consolidation on railroads — effect on prior liabilities. Where the articles of consolidation of two railway companies provided that the new company should assume the debts and liabilities of the old companies, and should assume and carry out all their unexecuted contracts, and the act of the legislature, ratifying and confirming the consolidation, saved the rights and remedies of creditors, it was held that a person performing labor under a contract with one of the old companies might maintain an action against the new company to recover whatever sum was due him under his contract.</p> <p>3. Parol evidence to explain contract. Where a party agreed, in writing, with a railway company to lay its track, using the words, “to make up the track in good running order, well surfaced, ties evenly and firmly bedded, and 2,600 good ties to be put in per mile, joints to be properly set between ties, fastened with clasp joint, supplied for the purpose, properly fitted, so as to hold an equal portion of each rail, and no greater space to be left between the ends of the rails than is sufficient for expansion,” etc.: Held, that whether this required the contractor to fill up the space between the ties with earth or other proper substance, was a question of fact depending upon usage in such cas