Cunningham Commission Co. v. Rauch-Darragh Grain Co.

• Decision Date: 13 March 1911
• Parties: CUNNINGHAM COMMISSION COMPANY v. RAUCH-DARRAGH GRAIN COMPANY
• Court: Arkansas Supreme Court

135 S.W. 831

98 Ark. 269

CUNNINGHAM COMMISSION COMPANY v. RAUCH-DARRAGH GRAIN COMPANY

Supreme Court of Arkansas

March 13, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

J. W Blackwood and J. W. Newman, for appellant.

1. There was no accord and satisfaction. The burden was on the defense to prove a bona fide dispute in the settlement of which were all the elements of a complete agreement--a lawful subject-matter, a sufficient consideration and the aggregatio mentium of the parties. 2 Ark. 209; 1 A. & E. Enc. 412; 1 Cyc. 311; 2 Watts (Pa.), 424; 5 N.H. 410; 92 F. 968.

2. There was no mutual assent. 126 S.W. 394; 56 Ark. 35. In following cases the creditor waited too long and did not give the debtor a chance to withdraw or alter his tender before it was too late: 148 N.Y. 326; 161 Ill. 339; 78 Miss. 912; 188 Mo. 623; 138 N.Y. 231; 20 L. R. A. 785; 68 Kan. 193; 119 S.W 38; 119 S.W. 765; 46 Ark. 217; 34 Vt. 201. See parallel case of 84 N.Y. 440.

Marshall & Coffman, for appellees.

1. The evidence shows a bona fide dispute, a sharp one as to the whole subject-matter of indebtedness; and cases cited have no application.

2. This case cannot be distinguished from Barham v. Bank of Delight, 94 Ark. 158. All the cases cited in this case support the opinion of this court.

OPINION

FRAUENTHAL, J.

This was an action instituted by the Cunningham Commission Company, plaintiff below, to recover the balance of an account which it alleged was due to it by the Rauch-Darragh Grain Company, one of the defendants, and also to discover and follow the assets of that company, which it alleged were wrongfully held by the other defendants. The defendant pleaded payment, and the case was tried upon the issue of accord and satisfaction, and both parties fully developed their evidence upon that issue.

The plaintiff was a domestic corporation, engaged in the grain business, and the defendant, the Rauch-Darragh Grain Company, was also a domestic corporation engaged in handling corn and in milling same into chops, meal, etc., and both corporations were located at Little Rock, Arkansas.

The plaintiff had furnished to said defendant a number of cars of corn and other grain upon an account which extended over a number of months during the year 1905. A part of this grain was furnished with the understanding that it should be paid for by the exchange of like commodities to be obtained from the defendant, and the other grain was furnished with the understanding that it should be returned in the manufactured products of meal and chops, the plaintiff paying for the grinding, handling and sacking thereof. A dispute arose between the parties as to the amount which was due to plaintiff upon said account. The controversy grew principally out of four cars of corn which were furnished to defendant in April, 1905. Two of these cars contained white corn and the other mixed corn; and all of this corn, the testimony indicated, was badly damaged. The purpose was to grind it and mix it with products of good grain so as to make it merchantable. It was claimed by the plaintiff that the greater portion of these four cars of corn had never been returned to it or accounted for by the defendant. The defendant, on the other hand, claimed that the two cars of white corn had been ground into meal and hauled to plaintiff's warehouse, and that the remainder of the corn had been ground and mixed with other products and turned over to plaintiff. Some other items of the account were also in dispute.

A few days prior to October 25, 1905, Mr. Cunningham, representing the plaintiff and Mr. Rauch and Mr. Darragh, representing the defendant, met at the office of the plaintiff, in order to adjust and settle their differences relative to the disputed account. The parties representing the defendant testified that all items of grain which had been furnished by plaintiff to defendant, and all items of the account, were considered at this meeting, and that the disputed items involving said four cars of corn were also considered in the consultation and settlement. They testified that the parties made mutual concessions and allowances in considering the various items of the account, and finally arrived at a determination of the amount which was due by the defendant to the plaintiff, and that it was agreed that the final balance due by defendant amounted to $ 250.73, and that Mr. Cunningham agreed to accept a check for that sum in full payment of all items due to it, including the four cars of corn.

On the other hand, Mr. Cunningham testified that, while the parties had met and discussed the various items of the account, the four cars were not included in the settlement, and that he did not agree to accept the above amount in payment thereof.

On October 25 the defendant sent to the plaintiff a check for the above sum of $ 250.73 in full settlement of all its indebtedness to the plaintiff, and it was stated on the face of the check that it was in full payment thereof. The plaintiff retained the check and cashed the same shortly after its receipt, but immediately wrote the following letter, which was delivered at defendant's office within a few hours thereafter:

"Little Rock, Ark., October 25, 1905.

"Rauch-Darragh Grain Co.

"City.

"Gentlemen:

"Your check for $ 250.73 received and applied to your credit. We wish to advise, however, that we do not accept same as settlement, as there are a number of items that we will not agree to. We will check your statement within the next few days and advise you concerning same.

Yours, etc.,

"Cunningham Commission Company."

The...