A. Greener & Sons v. P. W. Cain & Sons

• Decision Date: 03 November 1924
• Docket Number: 23777
• Citation: 101 So. 859,137 Miss. 33
• Parties: A. GREENER & SONS v. P. W. CAIN & SONS. [*]
• Court: Mississippi Supreme Court

101 So. 859

137 Miss. 33

A. GREENER & SONS v. P. W. CAIN & SONS. ^[*]

No. 23777

Supreme Court of Mississippi

November 3, 1924

Suggestion of Error Overruled Dec. 15, 1924.

(In Banc.)

1. ACCORD AND SATISFACTION. Executed agreement by creditor to take less than amount owing is binding, although without consideration.

Although an unexecuted contract between debtor and creditor by which the latter agreed to take a less amount than owing on a past due indebtedness was void and unenforceable because there was no new consideration, nevertheless, where such a contract had been executed, it is binding, and the creditor cannot sue for the balance, although there was no consideration for the new contract.

2. ACCORD AND SATISFACTION. Creditor cannot accept money and reject goods tendered in full payment of debt.

Where a debtor tendered the creditor in full payment and satisfaction of a liquidated overdue debt goods at invoice price and a check for the balance, on which check there was indorsed "in full of account to date," which check the creditor accepted and credited the debtor with the proceeds thereof, but declined to accept the goods, held, that the tender by the debtor of the goods and check was an entirety which had to be accepted or rejected by the creditor as made, and the acceptance by the creditor of the check bound him to accept likewise the tender of the goods that the acceptance of one was the acceptance of both.

SMITH C. J., and HOLDEN, J., dissenting.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by A. Greener & Sons against P. W. Cain & Sons. From a judgment for defendants, plaintiffs appeal. Affirmed.

Affirmed.

B. H. Loving, for appellants.

McFarland & Holmes, for appellee.

Briefs in this case not available to the reporter.

ANDERSON, J. SMITH, C. J. dissenting.

OPINION

ANDERSON, J.

Appellants, A. Greener & Sons, sued appellees, P. W. Cain & Sons, for a balance of one hundred thirteen dollars and twenty-five cents alleged to be due on open account. By consent of the parties the circuit court tried the case sitting as judge and jury, and rendered a judgment in favor of appellees from which appellants prosecute this appeal.

Appellants were wholesale merchants in Memphis, while appellees were retail merchants in Monroe County in this state. Appellees purchased a bill of goods from appellants on which there was a balance due of one hundred and thirty-five dollars. Appellees admitted they were due appellants that amount, and that it was past due. The amount due was therefore liquidated and admitted by appellees to be overdue. Appellees tendered appellants in full payment and settlement of the indebtedness one hundred thirteen dollars and twenty-five cents worth of goods at invoice price which they had bought from appellants, and their check for the balance, twenty-one dollars and seventy-five cents, making the one hundred and thirty-five dollars. The tender was made in this manner: Appellees shipped to appellants by express the goods, and wrote appellants a letter, inclosing a check for twenty-one dollars and seventy-five cents, upon which was noted "in full of account to date," and asked appellants to accept the goods and the check in full of the indebtedness, claiming that on account of adverse business conditions they could do no better. Appellants thereupon indorsed the check for twenty-one dollars and seventy-five cents, and took credit for the amount with their bank, which check in due course was paid by appellees. Appellants declined, however, to accept the goods shipped them by appellees, and promptly so notified the appellees, and demanded payment of the balance of one hundred thirteen dollars and twenty-five cents in money. Appellees refused payment, whereupon appellants brought this suit for said balance. Appellees' position is that acceptance by appellants of the check for twenty-one dollars and seventy-five cents was an acceptance also of the goods tendered by appellees. In other words, appellees contend that what took place amounted to an executed accord and satisfaction for a liquidated past-due indebtedness. On the other hand, appellants contend that the minds of the parties never met; that they had a right to accept and appropriate the check for twenty-one dollars and seventy-five cents, which was only a part of what was justly due them, and reject the tender of the balance in goods.

It was held in Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, that, although an unexecuted contract between debtor and creditor by which the latter agreed to take a less amount than owing on a past-due indebtedness was void and unenforceable because there was no consideration, nevertheless, where such a contract had become executed, that is, where the lesser amount had been paid and the evidence of debt surrendered, the contract was binding, and the creditor could not sue for the balance, although there was no consideration for the new contract; that an executed contract of that character was tantamount to the creditor, making a gift to debtor of the balance due, which he had a right to do, and when done was binding between them.

We are of opinion that the principles laid down in that case are largely controlling here in favor of appellees. It is true that appellants declined the tender of the goods, but at the same time they accepted the tender of the check. This they could not do. The tender was an entirety. Appellants could not split it to suit themselves; they had to take all of it or none of it. And when they took part of it the law imposed the duty upon them to take the balance whether they would or not. They had to accept or reject the tender according to its terms. Putting it differently, their acceptance and appropriation of the check was unauthorized, unless at the same time they were willing to take the balance due in the goods tendered by appellees.

Affirmed.

DISSENT BY: SMITH

SMITH C. J. (dissenting).

Judge HOLDEN and I are of the opinion that judgment of the court below should be reversed.

Unless a statute otherwise provides, the rule in England, and in probably all of the American states except New Hampshire and Mississippi (1 C. J. 543), is that:

"Where the debt or demand is liquidated or certain and is due, payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, if there be no release under seal or no new consideration given." 1 C. J., section 40, p. 539.

In this state this court finally overruled its former decisions on the subject, and held in Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, that the acceptance by a creditor from his debtor of a sum less than the amount due him, even though his claim therefor is liquidated, with an agreement that it shall be received in full satisfaction of the amount due extinguishes the entire debt. In order, however, for a creditor's entire debt to be extinguished by the payment to him of a part thereof, the payment must have been in fact tendered as in full, and to have been understood by the creditor when he accepted it to have been so tendered. Cooper v. Y. & M. V. R. Co., 82 Miss. 634, 35 So. 162.

In our opinion no such tender was here made and accepted. Certainly the appellants did not so understand that the check was so tendered. In order that our reason for so holding may the more clearly appear, I will restate the case and set out the evidence more fully than has been done in the opinion in chief.

The appellants are wholesale merchants, doing business in the city of Memphis, Tenn., and the appellees are retail merchants doing business in Monroe county, Miss., who on December 17, 1920, owed the appellants a balance of one hundred and thirty-five dollars on merchandise theretofore purchased from them, for the payment of which the appellants were pressing the appellees and threatening to sue therefor. All of the evidence bearing on the alleged payment of this balance is contained in several letters which passed between the parties, except such as may be hereafter referred to, and which are as follows:

"Prairie Miss., Dec. 17, 1920.

"A. Greener & Sons, Memphis, Tenn.--Gentlemen: We are returning to you by express prepaid some of over shirts. We hate very much to have to settle the account this way, but owing to conditions we feel that it is only justice to you, as we are not able to meet our obligations this year. We are facing conditions such that we have never before seen or heard of, and we are forced to return them as part payment.

...