Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co.

• Decision Date: 02 November 1926
• Docket Number: No. 18625.,18625.
• Parties: GULFPORT WHOLESALE LUMBER CO. v. BOECKELER LUMBER CO.
• Court: Missouri Court of Appeals

287 S.W. 799

GULFPORT WHOLESALE LUMBER CO. v. BOECKELER LUMBER CO.

No. 18625.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by the Gulfport Wholesale Lumber Company against the Boeckeler Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Seneca O. Taylor, of St. Louis, for appellant.

Wilson & Trueblood, of St. Louis, for respondent.

SUTTON, C.

Plaintiff sues for $434.67, with interest, claimed as a balance due on account of three carloads of lumber sold and delivered to the defendant. The defense is accord and satisfaction. From a verdict and judgment for plaintiff, defendant brings the case here by appeal.

The three cars of lumber sued for were shipped to the defendant on June 30, August 1, and August 15, 1919. On October 2, 1919, the plaintiff received from the defendant a complaint, with reference to the lumber, with reports from defendant's inspectors indicating they had found some portion of the lumber in each car to be below the grade contracted for, on account of which the defendant claimed deductions from the contract price. The plaintiff replied by letter that the defendant's claims would not and could not be allowed or considered because of the defendant's delay in making complaint.

Thereafter, on October 27, 1919, the defendant remitted to plaintiff a check for $645.49, accompanied by a statement which set forth debit and credit items, leaving $645.49 due the plaintiff from the defendant, according to the statement. This was the amount which the defendant admitted to be due plaintiff, after deducting its claims. Neither the check nor the statement attached to it indicated in any way that the check was offered as a settlement, in full, of the plaintiff's claim. There was nothing whatever on the check, and the statement, after setting forth the debits and credits, simply said, "Check inclosed herewith for $645.49."

Plaintiff acknowledged the check by letter on October 29, 1919. The letter called defendant's attention to the fact that plaintiff had, in its previous letter, refused to allow the claims on account of grade, but the letter stated that plaintiff would accept the check and credit it on account, in view of the fact that there was nothing in the statement or check to indicate that the defendant had tendered the check as a settlement in full of account, and referred defendant to plaintiff's previous letter for plaintiff's position with regard to the deductions claimed. To this letter the defendant made no reply.

Thereafter, plaintiff wrote defendant asking for payment of the balance plaintiff claimed was due it, and the defendant replied by letter, setting forth its complaints about the lumber delivered, giving the details as to the number of board feet and the various defects in the lumber, advising plaintiff that it was holding the lumber subject to its order, but without contention that there had been a settlement, in full, of plaintiff's account.

The defendant now contends that its demurrer to the evidence should have been sustained by the trial court on the theory that the evidence established an accord and satisfaction, as a matter of law. On the other hand, plaintiff maintains that there was no evidence whatever of an accord and satisfaction, and the trial court would have been justified in directing a verdict for the plaintiff, and that therefore the judgment should be affirmed.

It is well settled that a part payment of a debt conceded to be due will not discharge the entire debt, even though receipted in full, and though based upon an understanding or agreement to that effect, for the reason that there is no consideration to support the agreement. But where there is an honest dispute between the parties as to the amount due, and the debtor tenders the amount he concedes to be due in satisfaction and discharge of the entire debt, and the creditor accepts the amount so tendered, the entire debt is discharged on the principle of accord and satisfaction. If there is a controversy between the creditor and the debtor as to the amount which is due, and if the debtor tenders the amount which he claims to be due, but tenders it on condition that the creditor accept it in discharge of his whole demand, and the creditor does accept it, that will be an accord and satisfaction, as a conclusion of law, the principle being that one who accepts a conditional tender assents to the condition. And this is true, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. But the mere payment by the debtor of the amount he claims to be due, but which is less than the amount the creditor claims to be due, and the acceptance thereof by the creditor, does not constitute an accord and satisfaction, though the debtor declares, at the time of the payment, that the amount paid" is all that is due. To constitute accord and satisfaction, the payment must be tendered in full satisfaction of the demand and be accompanied by such acts and declarations as amount to a condition that acceptance will be in full satisfaction of the demand. If the debtor intends his payment to be in full satisfaction, he must make such intention known to the creditor in some...