Crouch v. Quigley
| Decision Date | 02 June 1914 |
| Parties | DELLA CROUCH, Appellant, v. WILLIAM B. QUIGLEY |
| Court | Missouri Supreme Court |
Appeal from Douglas Circuit Court -- Hon. John T. Moore, Judge.
Reversed and remanded.
E. C White and G. W. Barnett for appellant.
(1) The court committed manifest error in giving the peremptory instruction directing a verdict for the defendant. The contract of marriage and the breach thereof are both admitted, so that there is no question of liability. In addition to other damages, the plaintiff testifies that she was put to $ 250 expense in preparing for her marriage besides giving up two years' employment at $ 300 per year at defendant's request. This evidence is uncontradicted. We are entitled to have the cause submitted to the jury on the theory of the plaintiff's testimony. Mr. White plaintiff's attorney, testified that the $ 100 was not paid or accepted in settlement of the damages, that the agreement was defendant should pay $ 2000 and that this $ 100 was a payment upon the $ 2000 agreed upon. There was accord but no satisfaction in this case, and accord without it is executed or accord without satisfaction is no bar to the original cause of action. Vining v. Insurance Co., 89 Mo.App. 212; Barton Bros. v. Hunter, 59 Mo.App. 618; Goff v. Mulholland, 28 Mo. 297; Giboney v. Insurance Co., 48 Mo.App. 186; Edmonson v. Carriage Co., 149 Mo.App. 133; 1 Cyc. 307, 308, 312, 313 and 314; Humphreys v. Bank, 75 F. 859; Carter v. Railroad, 136 Mo.App. 324; Clifton v. Litchfield, 106 Mass. 34; Cromer v. Heim, 75 N.Y. 574; Hawley v. Foote, 19 Wend, 516; Simmons v. Clark, 56 Ill. 27; Hall v. Flocton, 16 Q. B. 1039; Boiley v. Homan, 3 Bing. (N.C.) 920; Clark v. White, 12 Peters 178; Shaw v. Burton, 5 Mo. 478. The thing paid by way of settlement must have been received in full settlement or satisfaction and this is a question for the jury. Edmonson v. Carriage Co., 149 Mo.App. 133; 1 Ency. Pl. & Pr., p. 77. The burden of establishing accord and satisfaction rests upon the party who pleads it. Barrett v. Kern, 141 Mo.App. 23; Supply Co. v. Wolf, 127 Mo. 625; Robinson v. Railroad, 84 Mich. 658. Not only this but accord and satisfaction to constitute a bar must be full, perfect, and complete. The accord must be executed, not executory. Barton Bros. v. Hunter, 59 Mo.App. 618. (2) A return or tender of the $ 100 before bringing suit was not necessary, because more than that amount was due the plaintiff in any event. The defendant admits liability and damages proven in the mere outlay of money in preparation for the wedding was in excess of this sum, and defendant introduced no evidence on amount of damages to reduce the amount proved. It would be a foolish thing to require plaintiff to return the $ 100 that she was entitled to and then sue for it. The universal rule is, that a return of a tender is unnecessary where that amount was due plaintiff in any event. 8 Cyc. 532; Humphreys v. Bank, 75 F. 852; O'Brian v. Railroad, 89 Iowa 644; Evans v. Evans, 52 S.W. 12; Burnham v. Spooner, 10 N.H. 532; Howard v. McMillen, 101 Iowa 453; McClung v. Lyster, 3 Greene (Iowa), 182; Pierce v. Wood, 23 N.H. 519; Star Acc. Co. v. Sibley, 57 Ill.App. 315; Kley v. Healey, 28 N.E. 593; Allerton v. Allerton, 50 N. J. 670.
J. S. Clarke for respondent.
Where a contract is modified or changed, and a new one substituted therefor, or in lieu of the old one, the rights of the parties must be settled by the terms of the new contract. Higgans v. Stafford, 67 Mo.App. 469; Henning v. Ins. Co., 47 Mo. 425; Vastine v. Wayman, 5 Mo.App. 598; Merrill v. Trust Co., 46 Mo.App. 236; Lonitz v. King, 93 Mo. 513; McClurg v. Whitney, 82 Mo.App. 625; Marshall v. Larkin, 82 Mo.App. 635; Stutter v. Raeder, 149 Mo. 297; Koons v. Car Co., 203 Mo. 259; Tussing v. Mill Co., 124 Mo.App. 220; Welch v. Mischke, 154 Mo.App. 728; Herboth v. Radiator Co., 145 Mo.App. 484; McCormick v. Obanion, 168 Mo.App. 606. It was appellant's duty before suing on the original contract of marriage to return the $ 100 received as part consideration for the new compromise contract and on failure to do so, the demurrer to the evidence was properly sustained by the court. Appellant could rescind her new contract but not without returning the $ 100, so that both parties would be in the position as before the making of the new substituted contract. Small v. Speece, 131 Mo.App. 513; Robertson v. Fuller, 115 Mo.App. 465; Jarrett v. Morton, 44 Mo. 275; Rodgers v. Pub. Co., 118 Mo.App. 12; Hayden v. Railroad, 117 Mo.App. 90; Culberson v. Young, 86 Mo.App. 277; Smith v. Kander, 85 Mo.App. 33.
This is a suit for twenty-four thousand dollars, damages for breach of promise of marriage. The petition states the promise made in February, 1906, preparation for the wedding to be held October 23, 1907, to which the friends and relatives were invited, and that the defendant failed to attend. That the day was again set for May, 1908, with the same result, and that thereafter, during the last-mentioned year, the defendant married another woman.
The answer, after a general denial in the usual form proceeds as follows:
"The premises considered defendant asks that the court find that said defendant paid said plaintiff the sum of $ 100 in full settlement of said demands in plaintiff's petition set forth and that said amount be adjudged to be in full payment of all damages that may have been due plaintiff on account of the violation of said marriage contract and for costs."
The defendant at the trial admitted the contract of marriage as alleged, that he had refused to carry it out and had married another woman. After the plaintiff had introduced evidence bearing upon the question of damages and rested, the defendant in his own behalf testified that after some negotiations with the plaintiff's attorney, Mr. White, he met the latter at Fort Scott to settle, where the following took place: I got off the train and he was on the platform and I talked with him twenty minutes and told him I would give him one hundred dollars, that was all I could do, and he gave me a check and I changed it on the bank here and gave it to him, and told him to hold it a day or two until I got back to Ava." The check was paid. He testified that at this meeting Mr. White presented to him written authority from the plaintiff to settle but did not remember whether or not it authorized a settlement for two thousand dollars.
Mr. White for the plaintiff testified that he met Mr. Quigley at Mansfield to talk over the settlement. He admitted that he had broken the engagement without reason, and after some talking Mr. White offered to take two thousand five hundred dollars cash, and Mr. Quigley wanted to know if he could make it two thousand dollars. Mr. White told him he would confer with plaintiff, and if she would agree to that amount it would be done. It was mentioned that Mr. Quigley make notes, and he asked if notes signed by his father and Mr. Latimer would be satisfactory, and Mr. White said he would accept that kind of note provided he would pay five hundred dollars in cash. They agreed to meet at Fort Scott the 10th of May to close it out, when Mr. Quigley was to pay the five hundred dollars and deliver three notes of five hundred dollars each, signed by his father and Mr. Latimer as security. The date of the meeting was deferred by Mr. Quigley until June 12, when they met at Fort Scott for that purpose. They met as arranged, and Mr. Quigley began to make excuses about his ability to pay, but finally it was arranged that he would give his check then for one hundred dollars with the understanding that he would pay two hundred dollars more in a few days and in a short time he would send the other two hundred dollars with the notes which his father had already signed, but had not yet been signed by Mr. Latimer. When he received the remaining four hundred dollars and fifteen hundred dollars in notes it was to be accepted as a full settlement.
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