Bizzell v. Bizzell

• Citation: 101 S.E.2d 668,247 N.C. 590
• Decision Date: 31 January 1958
• Docket Number: No. 312,312
• Parties: Fay BIZZELL v. J. Eustice BIZZELL.
• Court: United States State Supreme Court of North Carolina

Page 668

101 S.E.2d 668

247 N.C. 590

Fay BIZZELL v. J. Eustice BIZZELL.

No. 312.

Supreme Court of North Carolina.

Jan. 31, 1958.

N.H. Godwin and Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiff, appellant.

J. Faison Thomson & Son, Goldsboro, for defendant, appellee.

PARKER, Justice.

Plaintiff's assignment of error No. 32 is based upon his exceptions 33 through 40, both inclusive. Each of these exceptions relate to the admission of evidence by the court at the May Term 1957 in respect to defendant's tender of monies and deeds to plaintiff to show full performance on his part of the agreement of 1 May 1954, copied in full above. Plaintiff contends that she appealed to the Supreme Court from the judgment rendered at the March Term 1957, and while such appeal was pending in the Supreme Court, the Superior Court of Wayne County was functus officio, and could hear no evidence, and enter no judgment as to defendant's plea in bar of accord and satisfaction at the May Term 1957.

A technical question might be raised as to whether defendant's plea in bar is one of accord and satisfaction, or one of compromise and settlement. However, this question is not raised by the briefs of counsel, and the case was heard on the theory that the plea in bar was one of accord and satisfaction. Plaintiff's action is for an accounting for rents and profits, and to recover $24,000 from the proceeds of the sale of realty: it is not an action seeking recovery of a freehold or inheritance. "Some confusion arises in the use of the terms 'accord and satisfaction,' 'compromise and settlement,' and 'release', for in the practical situations out of which the cases arise these concepts coalesce. * * * There has generally been an interchangeable use of the terms 'accord and satisfaction' and 'compromise and settlement.' The view has been taken that any distinction between the two is unimportant where the agreement is executory, since, like satisfaction to an accord, in order to be a defense to an action on the original claim, a compromise must be followed by a settlement in the sense of payment; but the better rule, and the one which gives force to the distinction between these subjects, is that although performance is necessary to a complete accord and satisfaction, this is not essential to a valid compromise. Moreover, a compromise must be based upon a disputed claim, while an accord and satisfaction may be based upon an undisputed or liquidated claim." 11 Am.Jur., Compromise and Settlement, p. 247. Following the theory of the trial below, Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726, we shall consider the plea in bar as one of accord and satisfaction. To call it a compromise and settlement would be of no practical benefit to plaintiff.

The accord is the agreement, and the satisfaction is the execution or performance of such agreement. Dobias v. White, 239 N.C. 409, 80 S.E.2d 23. In the agreement entered into by and between defendant and his wife, C.K. Bizzell and wife, Louise B. Stengel and husband, and plaintiff, dated 1 May 1954, it is plain that the parties thereto agreed that it is only the performance of that agreement that shall have the effect of an accord and satisfaction. Therefore, if defendant could not prove that he had fully performed the agreement, his plea in bar of accord and satisfaction would constitute no defense, and would not bar plaintiff's action.

Judge Moore heard only one phase of this case: defendant's plea of accord and satisfaction as a bar to plaintiff's action. His judgment at the March Term 1957 was not a final judgment disposing of the case and leaving nothing to be judicially determined between plaintiff and defendant in the trial court, because he left the matter open to be heard at a subsequent term as to whether the defendant could show that he had fully performed the agreement. Until that was determined no final judgment on defendant's plea in bar of accord and satisfaction could be rendered. His judgment entered at the March Term 1957 was interlocutory, because it was a judgment made during the pendency of the plea in bar of accord and satisfaction, which did not dispose of the plea, but left it for further action by the trial court in order to hear and determine such plea by a final judgment. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377, 381, where this subject is fully discussed with citation of authority. In that case Ervin J., said for the Court. "An appeal lies to the Supreme Court from a final judgment of the Superior Court. Citing authority. An appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment." The exception has no application here. "As a rule orders and judgments which are not final in their nature, but leave something more to be done with the case, are not immediately reviewable. The remedy is to note an exception at the time, to be considered on appeal from the final judgment." McIntosh, N.C. Practice and Procedure, Second Ed., Vol. 2, p. 207.

The appeal, or attempted appeal, by plaintiff to the Supreme Court from the nonappealable interlocutory judgment rendered by Judge Moore at the March Term 1957 was a nullity, and did not deprive the Superior Court of Wayne County of jurisdiction at a subsequent term to hear evidence on defendant's plea in bar of accord and satisfaction as to the full performance of the agreement by defendant, and then to enter final judgment as to such plea in bar. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879. Plaintiff's assignment of error No. 32 is overruled.

The decisions cited by plaintiff in her brief, wherein the lower court became functus officio pending appeal, are readily distinguishable.

Plaintiff assigns as error Judge Moore's finding of fact that the defendant himself furnished $70,000 for the construction of what is known as the Colonial Store on John Street, and that he furnished a considerable portion of the $130,000 used in the enlargement and modernization of the building at 128, 130 and 132 North Center Street on the ground that such finding of fact is not supported by the evidence. She further assigns as error the judge's conclusion of law based thereon that the monies advanced and expended by defendant and his claim to an interest in real estate constitutes a sufficient consideration to support the agreement of 1 May 1954. Plaintiff further assigns as error that the judge found as a fact that all matters in controversy between the plaintiff and the defendant were settled as of 1 May 1954, which contract was partly in writing and partly by parol, and also assigns as error the judge's finding of fact that the defendant has complied with the terms of the agreement in all respects. Plaintiff contends in his brief that "the findings of fact are not based upon the greater weight of the evidence," and that the accord and satisfaction here is not based upon any consideration, and has not been performed by defendant. Suffice it to say that the above findings of fact are supported by competent evidence, and are conclusive on appeal, and Judge Moore's finding of fact supports his conclusion of law that there was a consideration for the accord and satisfaction. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; State Trust Co. v. M. & J. Finance Corp., 238 N.C. 478, 78 S.E.2d 327; Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461. "Any new consideration, though insignificant or technical merely, is sufficient consideration for a contract of accord and satisfaction, provided it is valuable." 1 Am.Jur., Accord and Satisfaction, p. 236. "The consideration may present itself in any of numerous different shapes or guises, but in some form or other it must be present--there must be either some advantage, or presumed or assumed advantage, accruing to party who yields his claim, or some detriment to the other party. This is all that the law requires by way of consideration * * *." 1 C.J.S. Accord and Satisfaction § 4. Since the agreement of 1 May 1954 entitles plaintiff to...