440 F.2d 1213 (5th Cir. 1971), 30401, D. H. Overmyer Co. v. Loflin

• Docket Nº: 30401.
• Citation: 440 F.2d 1213
• Party Name: D. H. OVERMYER CO., Inc., Plaintiff-Appellant, v. John T. LOFLIN, doing business as Loflin Sand & Gravel Company, Defendant-Appellee, v. D. H. OVERMYER CO., Inc. (a Mississippi Corporation), Third-PartyDefendant-Appellant.
• Case Date: April 05, 1971
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1213

440 F.2d 1213 (5th Cir. 1971)

D. H. OVERMYER CO., Inc., Plaintiff-Appellant,

v.

John T. LOFLIN, doing business as Loflin Sand & Gravel Company, Defendant-Appellee, v. D. H. OVERMYER CO., Inc. (a Mississippi Corporation), Third-PartyDefendant-Appellant.

No. 30401.

United States Court of Appeals, Fifth Circuit.

April 5, 1971

Rehearing Denied May 20, 1971.

Page 1214

Earl T. Thomas, Jackson, Miss., John P. Garrigan, New York City, Paul Tudor Jones, Thomas, Price, Alston, Jones & Davis, Jackson, Miss., for plaintiff-appellant.

William L. Shumate, New York City, Charles W. Crisler, Jr., Alfred N. Crisler, Crisler & Crisler, Rufus H. Broome, Jackson, Miss., for defendant-appellee.

Before RIVES, THORNBERRY and CLARK, Circuit Judges.

CLARK, Circuit Judge:

D. H. Overmyer Co., Inc., an Ohio corporation, plaintiff below, and D. H. Overmyer Co., Inc., a Mississippi corporation, third-party defendant, (hereinafter collectively Overmyer), appeal from a summary judgment in favor of defendant, John T. Loflin, on Counts 1 and 2 of plaintiff's complaint and a joint judgment against plaintiff and third-party defendant on Loflin's counterclaim after a trial to the court on the merits. Both the summary and the plenary judgments were based upon the fact tat the parties had entered into an accord and satisfaction of a disputed claim. We affirm.

Briefly, the facts are these. Overmyer entered into a prime contract with Green & White Construction Company to construct a warehouse in Jackson, Mississippi. Green & White subcontracted a portion of its undertaking to Loflin. In the written subcontract document Loflin agreed that all work order changes would be in writing. During the course of the construction, Loflin delivered materials and performed services pursuant to oral work order changes which he contends were authorized, required and approved by the job superintendent for Green & White. Subsequently, Green & White fell behind in their progress payments, and another subcontractor filed suit in a Mississippi state court on Green & White's performance and payment bond. Loflin joined in the suit, as required by Mississippi law. ¹ Overmyer determined to take over and complete the contract of Green & White and therefore undertook to dispose of the pending litigation and its associated lien claims. In consideration for Loflin's acceptance of a partial deferred payment, release of the liens he held against Overmyer's property, and dismissal of his state court suit with prejudice, Overmyer agreed to settle Loflin's claim against Green & White by paying 10,000 dollars and issuing a note to Loflin for approximately 20,000 dollars. At the same time, Green & White assigned to Overmyer all claims it might have against Loflin. Some thirteen months after this settlement and assignment, Overmyer filed the present suit against Loflin seeking to recover all payments that were made because of work done under oral work order changes. ² Loflin defended on the ground that the settlement agreement was an accord and satisfaction of all claims that Overmyer held against Loflin. Loflin counterclaimed for the unpaid balance due on the note. The judgments and this appeal therefrom eventuated.

Overmyer asserts five points of error in this appeal. First, he argues that Loflin did not...