Flener v. Flener

• Court: Kentucky Court of Appeals
• Writing for the Court: NUNN, J.
• Citation: Flener v. Flener, 99 S.W. 258 (Ky. Ct. App. 1907)
• Decision Date: 23 January 1907
• Parties: FLENER v. FLENER.

99 S.W. 258

FLENER v. FLENER.

Court of Appeals of Kentucky.

January 23, 1907

Appeal from Circuit Court, Butler County.

"Not to be officially reported."

Action by Moses Flener against Letcher Flener. From a judgment for plaintiff, defendant Flener appeals. Affirmed.

N. T Howard and W. W. Helm, for appellant.

B. L D. Guffy and Thos. H. Paynter for appellee.

NUNN J.

In the year 1893, the appellee recovered in the Butler circuit court a judgment against the appellant for $146, with interest thereon at 6 per cent. from the 12th day of October, 1893 until paid, and $44.15, the cost of the action. It appears that the appellant was insolvent, and the judgment was not collected. In 1905, the appellee had an execution issued upon this judgment, and it appears to have been returned with levy indorsed upon three small tracts of land belonging to the appellant upon which there were some mortgage liens. This action was brought against the appellant and the mortgagees for the purpose of enforcing his execution lien. The appellant answered and alleged that he had settled this judgment and filed a receipt signed by the appellee, which recited, "Received of Letcher Flener $______ in full of the judgment," and which also described the judgment. Appellee filed his reply, in which he alleged that he could not and did not read the receipt; that, at the time he signed it, he thought it was for $15 as part pay on the judgment which sum was the only amount that he had ever received on the judgment. The issues were made complete, and proof heard, and the lower court rendered a judgment in behalf of the appellee, of which appellant complains.

The parties agree that only $15 was paid at the time of the execution of the receipt. The evidence is conflicting as to whether or not appellee at the time understood and accepted that sum in full satisfaction of his judgment. Assuming that he did accept it as such, in our opinion the contract cannot be enforced. It is a well-settled rule that an acceptance of part of a debt when due, in satisfaction of the whole, does not operate as a bar to the recovery of the residue. This rule does not apply, however, when the payment is made before the debt matures or at a different place from that where the debt is made payable, and in some other instances not necessary to mention. In Fenwick v. Phillips, 3 Metc. 87, this court quoted with approval from Jones v. Bullitt, 2 Litt. 51, as follows: "It is a well-settled rule that the acceptance of a part of the debt when payable, in satisfaction of the whole, cannot operate as a bar to the recovery of the residue. For, the debtor being under obligation to pay the whole debt at the time, and the creditor being entitled to receive the whole, an agreement that a part shall be a satisfaction of the whole debt is an agreement without consideration, and cannot be enforced either in a court of law or a court of equity. But, if the creditor accepts of a part of a...