Elliott v. Thomas
| Decision Date | 21 December 1914 |
| Parties | G. W. ELLIOTT et al., Appellants, v. A. A. THOMAS et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chas. H. Mayer, Judge.
Judgment reversed and cause remanded.
Sterling P. Reynolds for appellants.
(1) The trial court erred in sustaining the demurrer. Even if the parties had agreed on a settlement, it was not carried out and plaintiffs had a right to sue on the original contract. It is admitted that there was no accord and satisfaction else why this deposit? It is the unbroken rule of law in this State, that the accord and satisfaction must be complete in order to be binding. Peterson v. Wheeler, 45 Mo 369; Barton v. Hunter, 59 Mo.App. 610. (2) Carter v Railroad, 136 Mo.App. 719.
W. N. Linn and John E. Heffley for respondents.
(1) A settlement in full when respondent gave appellants the orders in full and appellants accepted such and drew the money thereon they accepted the conditions, being in full settlement of the amount due them. Andrews v. Stubbs, 100 Mo.App. 599. (2) Appellant Elliott states that at the time the order was given him he stated that it was not in full payment and threw the order down and afterward picked it up, took it to Shull & Chipps and received payment, less $ 4.62 which was by respondent paid to the constable just as soon as this suit was instituted. Such being the facts, appellants must be held to have accepted it in full, for if he accepted the money conditionally tendered he accepted the conditions also. Cornelius v. Rosen, 111 Mo.App. 619.
--This suit was instituted by appellants, G. W. Elliott and Charles Davis, to enforce a mechanics lien for $ 84.37 the balance alleged by them to be due on an account for labor performed in building a small house for respondent A. A. Thomas.
Under the original contract which was oral they were to build a five room house for $ 125 and do some painting for $ 35 making $ 160 in all. After the work began, appellants claim that Thomas appeared at the place where the house was being erected and gave them the plan of the house to be built. According to appellant's testimony this included more than the house contemplated in the contract, and Thomas was so told, whereupon he agreed they should do the extra work and he would pay for same.
Thomas had borrowed some money to pay for the house and this was held by the firm of Shull & Chipps who paid it out to appellants as the work progressed in orders signed by Thomas. Appellants' testimony tends to show that when the house was completed Thomas expressed himself as satisfied therewith; that in addition to the work called for in the original contract they did $ 56.50 worth of extra work making their amount aggregate the sum of $ 216.50; that in various orders given by Thomas on Shull & Chipps they have received $ 152.13 leaving a balance due of $ 84.37. Thomas denied that there was anything said about extra work or that anything extra was required or done.
Davis testified that he had cashed orders given by Thomas on Shull & Chipps to the amount of $ 75 which lacked $ 2.50 of amounting to one-half of the amount due under the original contract at the time he came into it, Elliott having already done $ 5 worth of work, leaving $ 155 as the balance to be paid for the work not counting extra work done.
It seems that the last order given by Thomas to Davis was for $ 17.50 and the last given Elliott was for $ 36.75. These orders, although exhibited to appellants while on the stand and identified by them, were not offered in evidence and we have no means of knowing what were their terms except by inference from the testimony. It is Thomas' contention however, that they were in full of the balance due from him under the original contract. Davis says his order was given to him the same as the others with no statement that it was in full of the amount due; that he could not read it without his glasses and did not have them, and cashed it without knowing...
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