Aaronson v. McGowan

• Decision Date: 25 April 1938
• Docket Number: 33178
• Citation: 181 Miss. 642,180 So. 738
• Court: Mississippi Supreme Court
• Parties: AARONSON v. MCGOWAN

180 So. 738

181 Miss. 642

AARONSON v. MCGOWAN

No. 33178

Supreme Court of Mississippi

April 25, 1938

Division A

1 PAYMENT.

A debtor may determine how payment to creditor shall be applied.

2. LANDLORD AND TENANT.

Where tenant delivered check to landlord bearing notation showing that it was for rent, and landlord indorsed and cashed check landlord could not recover on note for rent, whether rent was due when check was delivered, whether landlord read notation on check, and whether tenant stated check was for rent.

3 EVIDENCE.

Where tenant delivered check to landlord bearing notation showing that it was for rent, landlord, by indorsing check, consummated contract that payment should be applied according to notation, and such contract could not be varied by parol evidence.

4. EVIDENCE.

In action on note for rent, evidence in regard to tenant's offer to compromise was inadmissible.

HON. WILLIAM A. ALCORN, JR., Judge.

APPEAL from the circuit court of Bolivar county, HON. WILLIAM A. ALCORN, JR., Judge.

Action on a note by M. Aaronson against H. H. McGowan. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Shands, Elmore, Hallam & Causey, of Cleveland, and Marcus L. Kaufman, of Rosedale, for appellant.

We are familiar with the line of cases, such as Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92, and other cases of similar import, to which we shall subsequently call attention, in which it appeared that the creditor had accepted from his debtor a check, with a notation on it, containing the words: "In payment of debt in full" or words of similar import, in which cases the court held that the acceptance of such a check precluded the creditor from undertaking to collect any further sum on the debt. But it will be observed by reading those cases that the creditor accepted the check knowing that it was tendered in full settlement of the debt.

The intention of the parties should be ascertained, and in the case at bar, as in all such cases, the intention of the parties have said, and done, and after a consideration of all of the facts and circumstances connected with the case.

Ingram v. Suset, 209 P. 699.

Even where a debtor contends that his creditor has accepted performance of his (the debtors) obligation, in a manner different from that previously agreed by them, it is necessary that the debtor plead and prove that the parties have made a substituted agreement, which the debtor has performed.

Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189.

There must not only be shown an acceptance of the amount of money tendered by the debtor, but there must be shown an agreement by the parties to accept the lesser sum as full performance of the obligation, which is an other way of saying that the creditor has knowledge of the proposition submitted by his debtor, and by acceptance concurs in the offer, or that the minds of the parties should meet with reference to the manner of performance submitted by the debtor.

Cooper v. Railroad Co., 82 Miss. 634, 35 So. 162; Darrill v. Dobbs, 78 Miss. 912; Newcomb v. Home Trust Co., 169 Miss. 883, 151 So. 158; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; A. Greener & Sons v. P. W. Cain & Sons, 137 Miss. 33, 101 So. 859.

We do not think it can be seriously contended that the creditor must have knowledge of the terms upon which his debtor has offered to pay the debt. Such knowledge is essential, so that the minds of the parties may meet on the terms offered by the debtor. In all of the foregoing cases, where a debtor has tendered to his creditor a check with the words, "In full payment to date," or words carrying a similar meaning, the evidence was uncontradicted that the creditor knew that the check had been tendered in full settlement of the debt. In the case at bar, according to appellee's testimony, the appellant had knowledge that the cheek was tendered in settlement of the 1931 rent only, but according to appellant's testimony he had no such knowledge, which we think made this a case to be submitted to a jury.

The acts of the parties subsequent to the giving of the $ 2900 cheek show that they did not consider that the check settled the 1931 rent.

Southern Coal Co. v. Barnett, 279 S.W. 192; Duncan v. F. A. Hihn Co., 148 P. 971; Beattie Mfg. CO. v. Heinz, 97 S.W. 188; Perryman v. Bear Mfg. Co., 29 F.2d 835.

A jury question was presented as to the intention of the parties, and as to whether appellant knowingly accepted the check with a condition attached to it, that it should be applied exclusively to the payment of the 1931 rent.

Rapp v. Giddings, 57 N.W. 237; Butler, County Treasurer, v. State for use of Franklin County, 81 Miss. 734, 33 So. 847; 48 C. J. 637.

As to whether a creditor has made settlement with his debtor, by means of a receipt, or a check, or by any other means, is a question of intent.

Blanchard v. Edenton Peanut Co., 108 S.E. 332; Mercer v. Lbr. Co., 173 N.C. 49, 91 S.E. 558; Stovall v. Lampton Co., 174 Miss. 58, 164 So. 39; Lapp-Gifford Co. v. Muscay Water Co., 134 P. 989; Everhardy v. Union Finance Co., 1 P.2d 1024; Woin v. Anaconda Copper Mining Co., 43 P.2d 663; Knight v. Wolpert, 290 S.W. 933; Stephenson Brick Co. v. Bessemer Engineering Co., 118 So. 570; Ellis v. Mansfield, 256 S.W. 165; Noyes v. Kendrick, 293 S.W. 296; Morton v. Siebler Clothing Co., 153 N.E. 227; St. Pierre v. Peerless Cas. Co., 92 A. 840; Pike v. Buzzell, 76 A. 642; Armstrong v. Lonon, 63 S.E. 101; Aydlett v. Brown, 69 S.E. 243.

We also contend that a jury question was presented as to the application of the payment of the $ 2900.

Light v. Stevens, 113 P. 659; Bishop v. Hart, 86 N.W. 218.

Sillers & Roberts, of Rosedale, for appellee.

The rule is well settled in Mississippi and elsewhere that a debtor making a payment has a right to direct its application.

Carberry v. Howell, 114 Miss. 549; 75 So. 383; Champenois v. Fort, 45 Miss. 355; Crisler v. McCoy, 35 Miss. 445; Baine v. Williams, 10 S. & M. (18 Miss.) 113.

Appellee had the privilege and right to direct the application of the $ 2900 payment on any indebtedness which he desired, and it was not necessary for him to secure the consent of appellant before he did so. It is not a question of an agreement between the parties, or a meeting of the minds as to how the application is to be made, but it is a privilege which the debtor had a right to exercise, and when exercised, the application is final. If the creditor is unwilling to apply the payment as directed by the debtor his only alternative is not to accept the payment at all. He has no right to apply the payment on any debtedness except that to which the debtor directs.

When appellee handed appellant the $ 2900 cheek with notation "for rent Walton Place 1931" on it, and appellant accepted, endorsed and cashed the check, it constituted an accord and satisfaction of the 1931 rent.

City of Columbia v. Foxworth, 159 Miss. 728, 132 So. 451; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; A. Greener & Sons v. P. W. Cain & Sons, 137 Miss. 33, 101 So. 859; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L.R.A. 771, 60 A. S. R. 521; Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Cooper v. Railroad Co., 82 Miss. 634, 35 So. 162; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Phillips v. Ins. Co., 156, Miss. 41, 125 So. 705; Blue Ribbon Creamery v. Monk, 168 Miss. 130, 147 So. 329; Rucker v. King Const. Co., 159 Miss. 387, 131 So. 872; Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92.

Parol evidence is not admissible to vary the terms of the check.

Section 2841, Code of 1930; Section 2763, Hemingway's Code; Bank of Gulfport v. Smith, 132 Miss. 63, 95 So. 785; Restatement of the Law of Contracts, sections 6, 7 and 10; 7 Am. Juris. 788; Greenlee v. Hardin, 157 Miss. 229, 127 So. 777; Bay v. Schrader, 50 Miss. 326; 8 C. J. 191; 7 Am. Juris. 816.

The receipt in the case at bar is contractual and cannot be varied by parol proof.

A. & V. R. Co. v. Kropp, 92 So. 691; English v. N. O. & N.E. R. R. Co., 100 Miss. 575, 56 So. 665; Orgill Bros. & Co. v. Polk, 155 Miss. 492, 124 So. 649.

Negotiations between appellant and appellee had in November of 1936 were for a compromise and settlement of all of the differences between the parties and were not admissible in evidence.

Shell Petroleum Corp. v. Eagle Lbr. & Supply Co., 158 So. 331, 171 Miss. 539; Federal Land Bank of New Orleans v. Robinson, 160 Miss. 546, 134 So. 180; Atlantic Life Ins. Co. v. Serio, 171 Miss. 726, 157 So. 474; Houston v. Keith, 100 Miss. 83, 56 So. 336; McNeer & Dodd v. Norfleet, 113 Miss. 611, 74 So. 577; 22 C. J. 308.

OPINION

McGowen, J.

Aaronson, the appellant, brought an action at law in the circuit court of Bolivar county against McGowan, the appellee, to recover a balance claimed to be due on a note, interest, and attorney's fees; copy of the note being exhibited therein. The appellee pleaded the general issue and payment of the note, and notice thereunder, exhibiting with the notice a copy of the check.

On the trial of the case the court heard the evidence of Aaronson, and his contention that the check in question had been accepted by him without his seeing a certain memorandum thereon, and that certain admissions had been made by the appellee some years later, when the parties attempted to adjust their differences.

The note sued upon with credits thereon, is as follows: "$ 2900.00

"For value received, on the 1st day of November, 1931, I promise to pay to M. Aaronson, or Bearer, Twenty-nine Hundred and no/100 Dollars, and interest thereon at the rate of 6 per cent per annum from maturity until paid, payable annually with ten per cent attorney's fees upon both principal and...