DH Overmyer Co. v. Loflin
| Decision Date | 20 May 1971 |
| Docket Number | No. 30401.,30401. |
| Citation | 440 F.2d 1213 |
| Parties | D. H. OVERMYER CO., Inc., Plaintiff-Appellant, v. John T. LOFLIN, doing business as Loflin Sand & Gravel Company, Defendant-Appellee, v. D. H. OVERMYER CO., Inc. (a Mississippi Corporation), Third-Party Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Earl T. Thomas, Jackson, Miss., John P. Garrigan, New York City, Paul Tudor Jones, Thomas, Price, Alston, Jones & Davis, Jackson, Miss., for plaintiff-appellant.
William L. Shumate, New York City, Charles W. Crisler, Jr., Alfred N. Crisler, Crisler & Crisler, Rufus H. Broome, Jackson, Miss., for defendant-appellee.
Before RIVES, THORNBERRY and CLARK, Circuit Judges.
D. H. Overmyer Co., Inc., an Ohio corporation, plaintiff below, and D. H. Overmyer Co., Inc., a Mississippi corporation, third-party defendant, hereinafter collectively Overmyer, appeal from a summary judgment in favor of defendant, John T. Loflin, on Counts 1 and 2 of plaintiff's complaint and a joint judgment against plaintiff and third-party defendant on Loflin's counterclaim after a trial to the court on the merits. Both the summary and the plenary judgments were based upon the fact that the parties had entered into an accord and satisfaction of a disputed claim. We affirm.
Briefly, the facts are these. Overmyer entered into a prime contract with Green & White Construction Company to construct a warehouse in Jackson, Mississippi. Green & White subcontracted a portion of its undertaking to Loflin. In the written subcontract document Loflin agreed that all work order changes would be in writing. During the course of the construction, Loflin delivered materials and performed services pursuant to oral work order changes which he contends were authorized, required and approved by the job superintendent for Green & White. Subsequently, Green & White fell behind in their progress payments, and another subcontractor filed suit in a Mississippi state court on Green & White's performance and payment bond. Loflin joined in the suit, as required by Mississippi law.1 Overmyer determined to take over and complete the contract of Green & White and therefore undertook to dispose of the pending litigation and its associated lien claims. In consideration for Loflin's acceptance of a partial deferred payment, release of the liens he held against Overmyer's property, and dismissal of his state court suit with prejudice, Overmyer agreed to settle Loflin's claim against Green & White by paying 10,000 dollars and issuing a note to Loflin for approximately 20,000 dollars. At the same time, Green & White assigned to Overmyer all claims it might have against Loflin. Some thirteen months after this settlement and assignment, Overmyer filed the present suit against Loflin seeking to recover all payments that were made because of work done under oral work order changes.2 Loflin defended on the ground that the settlement agreement was an accord and satisfaction of all claims that Overmyer held against Loflin. Loflin counterclaimed for the unpaid balance due on the note. The judgments and this appeal therefrom eventuated.
Overmyer asserts five points of error in this appeal. First, he argues that Loflin did not sustain his burden of proving an accord and satisfaction. The record demonstrates there is no merit to this contention. Second, Overmyer contends that there was no dispute as to the amount owed to Loflin, and that Loflin was paid exactly what he claimed was owed to him. From this assertion, Overmyer urges that no accord and satisfaction resulted from the mere payment of an undisputed debt. The record again clearly shows that there was no genuine issue of fact as to the existence of a dispute between Loflin on the one hand and Green & White and Overmyer on the other, as to the amount owed to Loflin, and Overmyer's counsel conceded on oral argument that such a dispute in fact existed. As an adjunct to this argument, Overmyer contends thta there was no mutual assent to the accord and satisfaction because neither party knew the amount owed to Loflin. But this contention misconceives the office of an accord and satisfaction. Settlement agreements are highly favored in the law and will be...
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