Bowers v. Southern Automatic Music Co.

• Decision Date: 19 March 1917
• Docket Number: 18892
• Citation: 74 So. 774,114 Miss. 25
• Court: Mississippi Supreme Court
• Parties: BOWERS v. SOUTHERN AUTOMATIC MUSIC CO

74 So. 774

114 Miss. 25

BOWERS v. SOUTHERN AUTOMATIC MUSIC CO

No. 18892

Supreme Court of Mississippi

March 19, 1917

Division B

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by the Southern Automatic Music Company against Houston D Bowers. From a peremptory instruction for the plaintiff defendant appeals.

This suit was begun by the appellee as plaintiff in the court below to recover upon twelve promissory notes, each being part of the purchase price of a Wurlitzer piano sold by appellee to appellant for use in a picture show. As part of the purchase price, appellant delivered to appellee an old piano owned by him at an agreed price of six hundred dollars and gave his twelve notes for seventy-five dollars each payable monthly. The appellant declined to pay any of the notes, and suit was brought and a writ of seizure granted to enforce the lien for the unpaid purchase price. The defendant pleaded a breach of warranty on the part of plaintiff, alleging that the plaintiff had represented that the piano was new and that it was in good condition and would furnish the kind of music which plaintiff knew defendant desired, and that it could be so regulated that it would make soft music when desired, when as a matter of fact these warranties were untrue, and that defendant had tendered the piano back to the plaintiff and demanded of it that it make good its warranty. Defendant also pleaded damages by way of recoupment and issue was joined on both these pleas. Defendant also filed a plea of puis darrein continuance in which he avers that the parties had settled this suit by agreement, whereby plaintiff was to return to defendant at his place of business in Jackson, Miss., the old piano taken as part payment in as good condition as it was when delivered to plaintiff, and that one Freeland, the agent of the plaintiff, was to be the judge of the condition of the old piano, and that the defendant was to return to plaintiff the Wurlitzer piano and pay plaintiff one hundred dollars and the costs of this suit, but that the plaintiff had not returned the old piano to the defendant in good condition, though the defendant stood ready at all times to carry out the terms of the compromise settlement which he pleaded in bar of this action. After all the testimony had been taken, there was a peremptory instruction for the plaintiff, and the defendant appeals.

Judgment reversed and cause remanded.

Powell & Featherstone, for appellant.

We shall argue this case upon two theories. First; If the original contract for the sale of the piano was not abrogated by the second agreement, then that there was a breach of warranty by appellee, for which we were entitled to damages by way of recoupment; Second: If the last agreement, set up in our plea of puis darrien continuance, abrogated the first contract, that then appellee could not proceed upon the original contract but is confined to the last agreement.

On the first proposition we say that this court, by an unbroken line of decisions, has held that whenever there is a conflict in the evidence it is a question for the jury and a peremptory instruction should not be given. National Life Insurance Company v. Devance, 110 Miss. 196.

In the next place it will not be contradicted that when a peremptory instruction is given, like a demurrer to the evidence, it admits, not only all that the evidence of the opposite party proves, but all that such evidence tends to prove, the law applicable to the facts should be given the jury, leaving the jury to say whether the propositions of fact have been established. Myrick v. Wells, 52 Miss. 149; American Express Company v. Jennings, 86 Miss. 329, 38 So. 374, 108 Am. St. Rep. 708; Bolling v. Red Snapper Sauce Company, 97 Miss. 785, 53 So. 394; Bass v. Ramos, 58 Fla. 161, 50 So. 945. In the case of Bass v. Ramos, supra, the Florida court held, and correctly so: "If the evidence even tends to prove the issue presented by the plaintiff, it should be submitted to the jury." Our court has held that if any in-inference can be deduced from the action of the party, which will slightly tend to prove the issue, this inference should be submitted to the jury. It may be a circumstance but a jury may find this circumstance to be sufficient for them to decide the issue. If there is any conflict in the evidence, or in the inferences which may be drawn from the circumstances, the view which is most favorable to the party against whom a peremptory instruction is given must be taken as true. Carson v. Leathers, 57 Miss. 650; Illinois Central Railroad Company v. Boehms, 70 Miss. 11, 12 So. 23; Whitney v. Cook, 53 Miss. 551; Farmer v. Cumberland Tel. & Tel. Co., 86 Miss. 55, 38 So. 775; McCaygn v. Young, 85 Miss. 277.

It will not be disputed, we think, by counsel on the other side, that the law in this state on sales of this kind is that where a vendor sells personal property, under a warranty which fails, and the vendee has paid all or a part of the purchase price on the reception of the property, that in such case the vendee can do either of two things: First, he can return the property to the vendor and cancel the trade; or second, he can retain the property purchased and recoup his damages for the breach of warranty.

In this case we attempt to avail ourselves of both these remedies. We tendered back the instrument and when the vendor failed to make us whole, we retained the instrument and now seek to recoup our damages for the breach of warranty, when the vendor sues for the purchase price, as shown by our plea for recoupment.

The evidence shows that the agent of appellee knew that the instrument was intended for use in a theatorium when he sold it, and he guaranteed it to be a suitable instrument for that purpose, and yet he practically admits, upon the stand, that it was not suitable for this purpose.

And so we again say that the evidence not only tends to show, but does show that appellee has breached his contract of warranty and we are entitled to recoup our damages against the demand of appellee for the purchase price, and this right being denied us by the peremptory instruction, given by the court, we are entitled to a reversal.

We will now discuss the issue raised by our plea of puis darrien continuance, to wit: That after the commencement of the case the parties made a compromise settlement of the case by rescinding the original contract and making a new one, and that thus the appellee lost the right to proceed further with the original contract and was relegated to the compromise agreement. First, we say that there seems to be no practical difference between the parties as to the terms of the compromise agreement which was: that appellee was to return the old piano to the Majestic theatre in as good condition as it was in when it received it and Bowers was then to pay appellee one hundred dollars and the cost of suit, and appellee was to retain the money already paid it. If there is any dispute between the parties as to this agreement then we say that it is a disputed question of fact and was for the jury to decide and the court should not have granted a peremptory instruction.

Second, we say that this last agreement was not an accord and satisfaction, as contended for by our friends, the enemy, but was a compromise agreement, by which the original contract was rescinded and a new contract entered into and appellee's law in regard to accord and satisfaction has no application.

There is a difference between an accord and satisfaction and a compromise. An accord and satisfaction is the settlement of a claim; a compromise is a settlement, not of a valid claim but the settlement of a controversy. See 5 Ruling Case Law, uage 877. In the case at bar not only the claim of appellee was settled, but the counterclaim of appellant, both of which constituted the controversy.

The law regards with favor, and seeks to uphold settlements of pending or threatened litigation but does not so regard an attempt to discharge an admitted debt by the payment of a part of it. See 5 Ruling Case Law, page 891, and cases cited in note 100. The subject of compromise and settlement is in general governed by the fundamental principles applicable to all contracts. See 5 Ruling Case Law, page 876.

We contend that this compromise agreement, rescinding the old contract, was binding upon the parties because: First, it was about a matter in which a legal contract could be made; second, the parties making the contract were capable of contracting; third, there was a legal consideration for the contract; and fourth, there was no fraud claimed in the making of the agreement. Why then is not the contract binding on the parties? Our court in the case of Bass v. Nelms, 56 Miss. 508, says:

"It is entirely competent and meritorious for a party who has been seeking redress in the courts from the consequence of the fraudulent practices of his adversary to enter into negotiations and come to a settlement with him. Although he might succeed, by prosecuting the litigation, in obtaining full relief, yet if he agrees to abandon litigation, and comes upon terms of adjusting the matters in controversy, if the contract is fairly made, he is bound by it. Nor will he be permitted to reopen the matters of former difference unless he can clearly and satisfactorily show that he was entrapped into the contract, by duress, or such fraudulent practices as will avoid it." Citing Field v. Weir, 28 Miss. 69; Edwards v. Roberts, 7 Smed. & M. 555; Hanson v. Field, 41 Miss. 712; see also, Long v. Shackleford, 25 Miss. 559; 3 Cyc., page 518 citing authorities from nearly all the states.

Watkins & Watkins, for appellant.

The appellant cites in support of its contention Whitney v Cook, 53...