Hagen v. Townsend
| Decision Date | 31 May 1911 |
| Citation | 27 S.D. 457,131 N.W. 512 |
| Court | South Dakota Supreme Court |
| Parties | HAGEN v. TOWNSEND & WHITE. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.
Action by O. S. Hagen against Townsend & White, copartners. From a judgment for defendants, plaintiff appeals. Reversed.O. S. Hagen, C. A. Kelley, and James Byrnes, for appellant.
T. M. Simmons, for respondents.
Appellant sued to recover the balance claimed to be due for certain wheat sold respondents. The complaint alleged the sale of 423 1/2 bushels at 91 cents per bushel, or a total of $385.38 worth, and admits the receipt in part payment of a check for $360.20, claiming an unpaid balance of $25.18. The amended answer admits the purchase of wheat, but sets forth that there were but 409 bushels, and that the purchase price thereof was 88 cents per bushel, or a total of $360.20, which had been paid in full. Verdict and judgment were for the defendants. A new trial was denied, and an appeal taken from the judgment and order denying a new trial.
[1]There are several assignments or error, only one of which needs our attention. There was no plea of accord and satisfaction. There was no evidence whatsoever tending to prove an accord and satisfaction; the evidence simply showing a misunderstanding and dispute between the parties as to the amount due the appellant, and that, at the end of their dispute, the respondents gave appellant a check for the amount which they conceded was due to him. There was no agreement, either oral or in writing, to receive the check in full settlement; in fact, there was nothing upon which the trial court could rightfully base an instruction concerning the defense of accord and satisfaction. The court instructed the jury at length upon the law of such a defense, and advised them that if they should find that there was a dispute between the parties as to the amount justly due, and that dispute was settled by giving that check, and such check was received in full settlement of the claim, their verdict should be for the defendants. The decision of this court in Eggland v. South, 22 S. D. 467, 118 N. W. 719, construing the statutes of this state, is conclusive of the questions here, holding, as it does, that an agreement to receive a less amount than a sum claimed to be due cannot be the basis for an accord and satisfaction.
[2][3]In addition to the reasons set forth in the Eggland Case, we find, in this case, that the respondents gave no consideration whatsoever upon which an accord...
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Qualseth v. Thompson
...part payment of loss by payee." This was held not to be an acceptance in writing of the condition. Attention is also called to Hagen v. Townsend, 131 N.W. 512, but in that case there was no condition noted on the In 1 RCL 196, we find the rule thus stated: "And when a check is sent upon the......
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Qualseth v. Thompson
...payment of loss by payee.” This was held not to be an acceptance in writing of the condition. Attention is also called to Hagen v. Townsend, 27 S. D. 457, 131 N. W. 512, but in that case there was no condition noted on the check. In 1 R. C. L. 196, we find the rule thus stated: “And when a ......
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Adams v. Morehead
...and the letter when read together present the same situation that arose in the Qualseth case, and that case is followed. In Hagen v. Townsend, 131 N.W. 512, we said: "There is no evidence to show that such check purported to be in full payment for the wheat; but, even if it had such a claus......