Hackett v. Railroad , 95 N.H. 511 ( 1949 )

"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.