Brothers v. Wagner

• Decision Date: 21 March 1911
• Docket Number: Case Number: 686
• Citation: 1911 OK 94,114 P. 1106,28 Okla. 367
• Parties: HOUSTON BROS. v. WAGNER.
• Court: Oklahoma Supreme Court

1911 OK 94

114 P. 1106

28 Okla. 367

HOUSTON BROS. v. WAGNER.

Case Number: 686

Supreme Court of Oklahoma

Decided: March 21, 1911

Syllabus

¶0 1. ACCORD AND SATISFACTION--What Constitutes--Partial Execution. An accord must be completely executed to sustain a plea of accord and satisfaction. A part execution and tender of performance of the residue is insufficient.

2. SAME--Evidence. Where, in an action on certain promissory notes, defendant pleaded accord and satisfaction, in effect, that pending the action it was agreed between defendant and plaintiff's agent that plaintiff would accept of defendant in full satisfaction of said notes certain lots, whereupon defendant placed him in possession and later tendered a deed therefor, which was refused, and the evidence supported the plea, held, that a judgment for defendant was contrary to law.

Error from District Court, Garvin County; R. McMillan, Judge.

Action by Houston Bros. against T. D. Wagner. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

F. E. Rice, O. W. Patchell, and Marion Henderson, for plaintiffs in error.

J. B. Thompson, for defendant in error.

TURNER, C. J.

¶1 On January 11, 1907, A. C. Houston and S. J. Houston, partners as Houston Bros., plaintiffs in error, sued T. D. Wagner, defendant in error, in the United States Court for the Indian Territory, Southern District, at Pauls Valley, on three certain promissory notes aggregating $ 913.09. For answer defendant filed a general denial, and also alleged that as to one of said notes his signature thereto was obtained by fraud. Later by amended answer he admitted execution of all the notes, but alleged that his signature to said note was the result of a mistake (setting forth the facts relied on). Further answering, he pleaded "payment" of all of said notes, and alleged the facts to be that since their execution (and pending this suit) plaintiffs sent to him their agent who, with full authority so to do, went with defendant to the town of Bradley and picked out four certain lots which defendant offered and said agent agreed to accept, in full payment of said indebtedness; that said agent entered into possession of said lots, but that defendant did not at once make a deed thereto, for the reason that the secretary of the town-site company whose duty it was to execute the deeds was at that time absent from the state, for which reason it was further agreed between defendant and said agent that the same should be executed and delivered to said agent in Lindsay immediately on the secretary's return; that the same was executed and tendered as agreed, but which said agent refused and failed to accept, and the deed was brought into court and tendered to plaintiff. After reply filed, in effect, a general denial and that said agent had no power to accept other than the cash in the settlement of said indebtedness, there was trial to a jury and verdict and judgment for defendant on his plea of "payment," and plaintiff brings the case here.

¶2 Assuming the facts set forth in defendant's plea to be supported by the evidence, plaintiff's assignment that the verdict is contrary to law must be sustained. Although the plea is denominated one of "payment," the attempt in legal contemplation was to plead an accord and satisfaction, which is defined to be:

"An agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which when performed is a bar to all actions upon this account." (Bouvier's Law Dictionary.)

¶3 While both pleading and proof disclose a complete accord, in that the minds of the parties met on the proposition that the lots were to be accepted in full satisfaction of the plaintiff's cause of action, it is further shown thereby that, as the plaintiff "backed out," there was no execution of the accord, and hence there was no satisfaction. 1 Am. & Eng. Ency. of Law, 420, says:

"An accord in order to discharge a contract or cause of action must be executed, and this execution of the accord is the satisfaction. Satisfaction consists in the actual performance by one party of the agreement of accord, and the acceptance by the other party of such performance in full satisfaction of the original cause of action or contract."

¶4 Acceptance of the execution of the accord is the sine qua non of a plea of accord and satisfaction. In Hearn v. Kiehl, 38 Pa. 147, 80 Am. Dec. 472, the court said:

"Accord and satisfaction is a good plea by a debtor to the action of his creditor, but the legal notion of accord is a new agreement on a new consideration to discharge the debtor. And it is not enough that there be a clear agreement or accord and a sufficient consideration, but the accord must be executed. The plea must allege that the matter was accepted in satisfaction. Mere readiness to perform the accord, or a tender of performance, or even a part performance and readiness to perform the rest, will not do. Such is the law between debtor and creditor."

¶5 Young v. Jones, 64 Me. 563, 18 Am. Rep 279, was assumpsit on an accepted draft. After plaintiff had made out his case, defendant offered to prove an agreement under seal with plaintiff after the maturity of the draft to accept a certain per cent. less than the amount of the draft in payment thereof, that the percentage agreed upon was tendered within the time limit, and that plaintiff refused to accept the same, and brought the instant suit, The question before the court was whether these facts, if proved, would constitute a defense. After holding that the facts did not show payment, the court said:

"Neither do the facts offered to be proved show accord and satisfaction. The agreement relied upon was executory. In Hawley v. Foote, 19 Wend. [N.Y.] 517, it was held not a good plea of accord and satisfaction that the plaintiff agreed to accept the note of a third person in discharge of the demand in suit, which, on being tendered him, he refused to accept. 'There has been no satisfaction' observes Johnson, J.

¶6 'The accord has not been executed, and the action is not barred.' Russell v. Lytle, 6 Wend. [N.Y.] 390 ; Com. Dig. B. 4. * * * The plea of accord to be good must show an accord not executory at some future time, but one executed. Cushing v. Wyman, 44 Me. 121. A mere readiness to perform the accord, or tender of performance, will not suffice, and a plea of accord tendered has been held bad on demurrer. A plea of accord and satisfaction must allege, not only a clear agreement or accord, but that it was executed by the...