Elliott v. Thomas

• Decision Date: 21 December 1914
• Docket Number: No. 11253.,11253.
• Citation: 171 S.W. 939
• Parties: ELLIOTT et al. v. THOMAS et al.
• Court: Missouri Court of Appeals

171 S.W. 939

ELLIOTT et al. v. THOMAS et al.

No. 11253.

Kansas City Court of Appeals. Missouri.

December 21, 1914.

1. ACCORD AND SATISFACTION (§ 11) — PART PAYMENT — ORDER RECITING FULL PAYMENT.

Where a creditor received an order for an amount less than that claimed by him, which stated that it was in full payment of the balance due, but he could not read it at that time, and nothing was said to him about its being any different from other orders which he had accepted, the acceptance thereof did not amount

to an accord and satisfaction which barred his right to recover on the original debt.

2. ACCORD AND SATISFACTION (§ 17) — NECESSITY OF EXECUTION — PAYMENT OF ORDER.

The acceptance of an order reciting that it is given in full payment of the balance due does not bar an action on the original debt, where the creditor received only part of the amount called for by the order, since an accord and satisfaction must be completed in order to be binding.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by G. W. Elliott and another against A. A. Thomas and others. Judgment for the defendants, and plaintiffs appeal. Reversed and remanded for new trial.

Sterling P. Reynolds, of St. Joseph, for appellants. W. N. Linn and John E. Heffley, both of St. Joseph, for respondents.

TRIMBLE, J.

This suit was instituted by appellants, G. W. Elliott and Charles Davis, to enforce a mechanic's 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 on 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 account 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...