Cypress Drainage District of Perry and Conway Counties v. Blair

• Decision Date: 04 December 1922
• Docket Number: 21
• Citation: 245 S.W. 310,156 Ark. 130
• Parties: CYPRESS DRAINAGE DISTRICT OF PERRY AND CONWAY COUNTIES v. BLAIR
• Court: Arkansas Supreme Court

245 S.W. 310

156 Ark. 130

CYPRESS DRAINAGE DISTRICT OF PERRY AND CONWAY COUNTIES v. BLAIR

No. 21

Supreme Court of Arkansas

December 4, 1922

Appeal from Perry Circuit Court; A. F. House, Judge; affirmed.

Judgment affirmed.

John L. Hill, for appellant.

Appellant was entitled to a peremptory instruction. The check for $ 160.60 was issued and accepted by appellee in full settlement, and bears such statement on its face, and he was therefore estopped to claim anything further. 114 Ark. 559.

Witnesses Maberry, Summers, Edwards and Blair testified as experts without having qualified as such, and their testimony was inadmissible. 55 Ark. 65; 120 Ark. 1.

J H. Bowen, for appellee.

Appellee did not accept the check in full settlement but specifically asked Colvin about the other $ 15 per acre, and Colvin promised that the matter would be taken up by the board at another meeting. Therefore the authority in 114 Ark. 559 is not applicable. It was a question to be decided by the jury as to whether there was an accord and satisfaction. 203 S.W 38.

OPINION

WOOD, J.

The appellee instituted this action against the appellant. He alleged in his complaint that he performed work and labor for the appellant in clearing 26.51 acres of land on appellant's right-of-way; that the work was reasonably worth $ 75 per acre; that appellant had accepted the work and paid the appellee the sum of $ 60 per acre thereon, and was due him a balance of $ 15 per acre, or a total sum of $ 397.50, for which he asked judgment.

The appellant, in its answer, admitted that the appellee had done the work, but denied that it was worth the sum of $ 75 per acre. It denied that it was indebted to appellee as alleged in his complaint. The appellant set up that, after the work was performed by the appellee, he agreed with the commissioners of appellant to receive payment therefor in the sum of $ 60 per acre, and that appellant thereupon paid appellee the balance due at such price, to-wit: the sum of $ 160.60, which amount appellee accepted in full payment of all balance due him.

The appellee testified that he received a check for $ 160.60. He stated that there was no one present when he received the check except Colvin, one of the commissioners of the district. Appellee made no agreement with the board while in session to do the work for $ 60 per acre. He asked Colvin, when the latter gave him the check, "What about the other $ 15 per acre?" and Colvin stated he would get the board together later. Later there was a meeting of the board, and they asked the appellee if he could do the work for $ 60 per acre. Appellee testified that he had been paid at the rate of $ 60 per acre, and that the work at a reasonable value was worth the sum of $ 75 per acre, leaving a balance due him of $ 397.50. The meeting of the board of commissioners to which the appellee referred was after Colvin had given appellee the check and after he had cashed the same.

There was testimony on behalf of the appellee tending to corroborate his testimony to the effect that the work which he did was worth the sum of $ 75 per acre.

G. B. Colvin testified substantially as follows: He was one of the commissioners. At a meeting of the board, after the work was completed and approved, and at which the appellee was present, they discussed pro and con what price the appellee should receive for his work. "Finally the commissioners agreed to pay him $ 60, and he agreed to accept the same, and upon that agreement, knowing the number of acres and the amount of money that heretofore had been paid him on the work, and figuring the number of acres at $ 60, it left a balance due him of $ 160.60." Witness drew a check of the district on the Perry State Bank for the balance shown to be due appellee, and marked on the check "In full for balance due on the contract at the lower end, Est. No. 2." The check was introduced in evidence and reads as follows: "Pay to B. W. Blair, or order, one hundred and sixty and 60-100 dollars out of any funds in your hands belonging to said drainage district. In payment of account for balance on clearing contract at lower end, est. No. 2. To Perry State Bank, Perry, Ark.

"JOHN S. HARRIS,

"Chairman Board of Commissioners.

"Countersigned, G. B. COLVIN,

"Secretary Board of Commissioners."

On the reverse...