Johnson v. Aylor

• Decision Date: 07 May 1917
• Docket Number: 354
• Citation: 195 S.W. 4,129 Ark. 82
• Parties: JOHNSON v. AYLOR
• Court: Arkansas Supreme Court

195 S.W. 4

129 Ark. 82

JOHNSON v. AYLOR

No. 354

Supreme Court of Arkansas

May 7, 1917

Appeal from Izard Circuit Court; D. H. Coleman, Judge; reversed.

Judgment reversed and cause remanded.

Bledsoe & Ashley, for appellant.

1. There was a sufficient consideration for Aylor's agreement to release appellant from the note and there was an accord and satisfaction. 33 Ark. 572; 24 Id. 197; 33 Id. 97. It was error to take the case from the jury.

The appellee pro se.

1. There was no agreement, but, if so, it was without consideration. 1 Words & Phrases (1 Series); 29 Ga. 166-176; 8 Cyc. 232; 33 Ark. 574; Chitty on Contracts, 645. The mere reception of the property would not support an accord agreement. 112 Ark. 503.

STATEMENT BY THE COURT.

This suit was instituted by appellee against appellant in a justice court on the following note, dated October 30, 1913:

"On or before Nov. 15th, 1914, I promise to pay to the order of C. C. Aylor one hundred and fifty dollars ($ 150.00), this being payment for rent on one field south of house on said C C. Aylor farm."

(Signed)

W. R Johnson.

Endorsed on the note was the following: "Paid on the within note $ 92.00." The note was also transferred by the payee and had written on the back thereof, "Without recourse on me." The appellee testified that he bought the same from his brother, C. C. Aylor.

The appellant testified that the note in suit was executed by him to C. C. Aylor for rent on a place belonging to Aylor for the year 1914. He had planted 20 acres in cotton and 15 acres in corn. The year of 1914 was a bad crop year and cotton was at a low price. In the fall he and C. C. Aylor went over the cotton and came to the conclusion that it would likely not pay the note. Appellant offered to turn the crops and place over to Aylor for the note if C. C. Aylor would pay a fertilizer bill and a cotton seed bill that appellant had incurred. C. C. Aylor agreed to pay for the cotton seed in case he did not have to pay for the fertilizer. They both thought the fertilizer bill was a lien on the crop, and when appellant asked C. C. Aylor for the note Aylor replied "Let me keep the note a little while in order to keep the fertilizer people off of me." Aylor did not pay the fertilizer bill nor the cotton seed bill either. Appellant moved away in a few days after this agreement, which was about October 1, 1914. C. C. Aylor sold the cotton and cotton seed and credited the note with the amount. At the time appellant entered into the agreement with C. C. Aylor the corn was cut and standing in shocks on the place. It was sorry corn.

The court instructed the jury as follows: "You are instructed that this is a plea by the defendant of accord and satisfaction, but the evidence shows that the agreement is without consideration. Therefore, you are instructed to return a verdict for plaintiff, as follows: We, the jury, find for the plaintiff in the sum of $ 63.61." Judgment was entered in favor of the appellee and the cause is here on appeal.

OPINION

WOOD, J., (after stating the facts).

The court erred in taking the case from the jury. The burden of proof was upon the appellant to sustain his plea of payment, and this he did by testimony which tended to show an accord and satisfaction. The testimony tended to show that appellant agreed to turn the crops and the place which he had rented from C. C. Aylor back to him on or about October 1, 1914, in consideration for the note in suit, and that he executed his part of the agreement.

Appellee relies upon Cavaness v. Ross, 33 Ark. 572, where we quoted from Chitty on Contracts, as follows: "The payment of part of a liquidated and ascertained sum is, in law, no satisfaction of the whole; although it may, in certain circumstances, be evidence of a gift of the remainder. And a plea which alleged the payment by the defendant, and receipt by the plaintiff, of a smaller sum in satisfaction of a larger, would be bad even after verdict."

But the above doctrine is not applicable to the facts of the present record, because here the testimony, tended to prove, and it was an issue for the jury, as to whether or not the agreement entered into between the payee and the maker of the note did not constitute an accord and...