PROPOSED FREIGHT RATE ADVANCE.
In view of the agitation regarding the proposed advance in freight rates it is suggested that our members protect themselves as fully as possible in making quotations. It is believed advisable to use a clause either printed or stamped on the letter-head or quotation stating substantially the following:
“All quotations made and orders accepted are based on present freight rates.”
Where this clause is used it should be printed or stamped in such a way that it becomes a part of the quotation or correspondence. Stamping the clause on the margin of a letter-head is considered inadvisable.
Opinion No. 110.
ACCEPTANCE OF AN AMOUNT OFFERED AS “PAYMENT IN FULL” MAY OR MAY NOT CANCEL THE DEBT.
Question—A customer sends me a check for a certain amount and inserts the following on the face of his check: “In full to June 1.” Does my indorsement give my receipt in full to this date or not? Can I indorse his check and write him a letter advising him that I am using the check only to apply on the account?
Reply: Suppose A owes B a certain sum of money and there is no doubt or dispute as to the amount actually due. Then if A pays to B less than the amount, in cash or by check, saying at the time, “this I tender as payment in full,” B may keep the money or cash the check without losing the right he previously had to demand what was still due and unpaid. No man, without the consent of his creditor, can discharge the whole of his debt by paying part of it, if the amount is liquidated and certain. Suppose, however, that there has been no agreement as to the amount due or that there is an honest and well-founded dispute concerning the matter. Then when the debtor sends any reasonable amount, with a statement that it is tendered and is to be accepted, if at all, as payment in full, that is his estimate of the sum due. The creditor cannot accept the tender without accepting the estimate; if he does accept the tender the amount due is thereby agreed upon and fully paid. If the creditor is not willing to accept the tender as payment in full he must return it. Then an agreement may be reached as to the amount actually due, or if the two cannot agree the matter may be left to the courts. The debtor has this privilege, in a case of this kind, because it would be unfair to him to allow the creditor to keep what the debtor honestly believed to be the whole sum due, and still allow him to sue for more, when, if he had brought his suit in the first place it is possible he might not have been able to recover even as much as the debtor has already paid him.
Opinion No. 51.