Barham v. Kizzia

• Decision Date: 09 October 1911
• Parties: BARHAM v. KIZZIA
• Court: Arkansas Supreme Court

140 S.W. 6

100 Ark. 251

BARHAM v. KIZZIA

Supreme Court of Arkansas

October 9, 1911

Appeal from Pike Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed and cause dismissed.

M Rountree and G. R. Haynie, for appellants.

Sam T Poe and George A. McConnell, for appellee.

OPINION

KIRBY J.

This is the second appeal in this case. The opinion on the first appeal is reported in 94 Ark. 158, (Barham v. Bank of Delight), and a sufficient statement of the case there made. It was remanded, and no new facts developed upon the second trial, in which appellee recovered a judgment, from which this appeal is taken.

It is insisted that the court erred in refusing to give the peremptory instruction in favor of the appellant and in giving instructions numbered one and two for appellee. The law of the case was plainly laid down on the former appeal, and said instructions numbered one and two were not warranted by the testimony and in accordance with the law, as declared. We said there: "If the offer or tender is accompanied by declarations and acts, so as to amount to a condition that if the creditor accepts the amount offered it must be in satisfaction of his demand, and the creditor understands therefrom that if he takes it he takes it subject to that condition, then an acceptance by the creditor will estop him from denying that he has agreed to accept the amount in full payment of his demand. His action in accepting the tender under such conditions will speak, and his words of protest only will not avail him. * * * If the offer of payment was made upon condition, and the plaintiffs so understood it, there was but one of two courses open to them, either to decline the offer and return the check or to accept it with the condition attached. The moment the plaintiffs indorsed the check and collected it, knowing that it was offered only upon a condition, they thereby agreed to the condition, and were estopped from denying such agreement. It was then that the minds of the parties met, and the contract of accord and satisfaction was complete in law."

The undisputed testimony in the case shows that there was a controversy between the parties, as to the amount due, and about which there had been some sharp correspondence; that a member of the creditor firm had had several conversations with one of the members of the debtor firm, who insisted on getting the matter adjusted, and had been assured by him that his company should have everything that...