Minnesota &Amp; O.P. Co. v. Register &Amp; T. Co.
Decision Date | 08 May 1928 |
Citation | 219 N.W. 321,205 Iowa 1228 |
Parties | Minnesota &Amp; Ontario Paper Company, Appellant, v. Register &Amp; Tribune Company, Appellee. |
Court | Iowa Supreme Court |
Appeal from Polk District Court. — W.G. BONNER, Judge. Action to recover under a contract for the sale of certain print paper. The trial court directed a verdict for the defendant and plaintiff appeals. — Affirmed.
Lancaster Simpson, Junell & Dorsey, Robert Driscoll, and John McLennan, for appellant.
Clark & Byers, for appellee.
On or about the 26th day of June, 1913, the parties to this action entered into a contract for the sale of certain print paper by the appellant to the appellee. A large 1. ACCORD AND quantity of paper appears to have been shipped SATISFAC- under said contract. This case involves only the TION purchase price of three carloads, and the action inadvertent is for a balance claimed to be due on said cashing of purchase price. The appellee tenders an issue as check. to a compliance with the contract on the part of the appellant, and pleads an accord and satisfaction. Two main questions are presented on this appeal: (1) As to whether or not the appellant proved anything due it under the contract; and (2) whether or not there was such proof of an accord and satisfaction as warranted the court in directing a verdict in behalf of the appellee.
I. It may be conceded that, under the evidence in the case, there was a question as to the quality or grade of a portion of the paper furnished by appellant to appellee, and that the amount due for said paper, under the contract and evidence, would be a question for the jury; but, in view of our conclusion on the other branch of the case, this question becomes immaterial, and we give it no further consideration.
II. The important question in this case is whether or not there was an accord and satisfaction established by the record. The plea of accord and satisfaction is an affirmative defense, and the burden rested upon the appellee to establish the same. The evidence in the case is practically without dispute, and the officers of both appellant and appellee testified with commendable frankness. Appellant contends that an accord and satisfaction was not established, on the two grounds that no valid consideration was shown for the claimed accord and satisfaction, and that there was no proof of a meeting of the minds of the parties. A brief review of the facts of the case is necessary. It appears that, after the receipt of the three carloads of paper in question, to wit, on or about July 11, 1914, the appellee paid the appellant $1,008.32 on account. It also appears that there arose a dispute and controversy between the parties as to the balance due on said carload of paper. The question between the parties involved the matter of quality of certain of the paper furnished, rather than quantity. It is unnecessary that we discuss the merits of this question, but the fact is clearly established that the parties were not in agreement as to the amount due for the paper furnished. Finally, on or about October 3, 1914, the appellee sent the appellant a letter, inclosing a check payable to the order of the appellant. The accompanying letter was not produced, and the copy thereof was shown to be burned. The business manager of the appellee, who wrote said letter and check, is deceased. It clearly appears, under the record, that the check bore a statement to the effect that it was sent "in full
of account" between the parties, and that the accompanying letter contained a statement to the effect that the check was sent in full settlement of said account. The evidence shows that the appellant received the letter and check at its business office in Minneapolis on or about October 5, 1914. The check was duly indorsed by the appellant, and was deposited to its account in a bank in Minneapolis on or about said date. It appeared that, at the time of the trial, the amount of said check was so retained on deposit by the appellant. The treasurer of the appellant, who had charge of its finances, testified in regard to the check, in part, as follows:
On October 8, 1914, the appellant sent the appellee a draft for the amount of $749.36, and wrote as follows:
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Minn. & Ontario Paper Co. v. Register & Tribune Co., 38497.
... ... follows:I have no independent recollection of the receipt by the Minnesota & Ontario Paper Company of the check for $749.36. Such a check was ... ...