Knight v. Wolpert

Decision Date14 February 1927
Docket Number192
Citation290 S.W. 933,172 Ark. 937
PartiesKNIGHT v. WOLPERT
CourtArkansas Supreme Court

Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck Judge; affirmed.

Judgment affirmed.

Horace Sloan, for appellant.

Penix & Barrett, for appellee.

OPINION

MEHAFFY, J.

The plaintiff brought suit in the circuit court, alleging that the defendant had agreed to pay 5 per cent. of the total cost of the proposed work for his services as an architect in preparing plans and specifications for remodeling a house in Jonesboro; that the total cost of the proposed work was $ 6,890.60; that the fee to appellee at 5 per cent. was $ 344.53, upon which there had been a payment of $ 200, leaving a balance of $ 144.53, and asked judgment for that amount.

Defendant answered, denying that he entered into the agreement as alleged by plaintiff, and alleged that he instructed the plaintiff that the plans and specifications must entail a cost of not more than $ 4,000, that the plans and specifications prepared would have required the expenditure of a much greater sum, and that, for that reason, they were worthless to defendant; that the $ 200 paid plaintiff was in full settlement and satisfaction of all amounts due.

The testimony is conflicting, the plaintiff's testimony tending to establish the allegations of his complaint, and that of the defendant tending to establish the allegations of the answer.

Appellant's first contention is that the court erred in not directing the verdict for the defendant, and this, it is contended, the court should have done because appellant contends that the last payment of $ 50 that he made plaintiff was given in full satisfaction and settlement of all amounts due. The plaintiff, testifying on that question, said in substance that he never agreed to accept $ 200 in full payment; that he called Mr. Knight, and also went to his house and got the last check, and told him that he still considered that he owed him $ 144.

The defendant testified that the last check he gave him was some time in March, and after he learned that the lowest bid on the work was $ 6,000; that defendant was sick in bed for about a week, and, realizing that the plaintiff would want some money, called him up and stated to him that if he would send up to the house he would give him a check; that the plaintiff asked him to please make it as liberal as possible; that the defendant told him he owed him $ 50 and would send him $ 50 in full payment, and that plaintiff said, "You owe me more than that," and defendant told him that was all he owed him and all that he was going to pay; that plaintiff came up to the house, and that he told plaintiff that that was all he was going to pay. "I told him that, when I handed him the check, that it was in full payment. He took the check and cashed it. When I handed him that last check I told him I was paying him in full; I told him that was all I was going to pay, and he stated he was going to sue me, and I said 'That is all you can do.' He then accepted the check and went out with it, but he told me at the time he was going to sue me. I told him at the time that he took the check that it was in full settlement. He went out and cashed it."

The above is practically all the testimony on the question of the last payment, and the real question in the case is whether or not, as a matter of law, it was such a settlement as would bar any recovery of any further sum. If that evidence showed accord and satisfaction, then the instruction should have been given; if not, it should not have been given.

"Where a claim is not a money demand, or, if so, is unliquidated or, if liquidated, there is a bona fide dispute as to the sum actually due, or a bona fide doubt or controversy as to whether anything is due, then an accord and satisfaction may be established and held binding, though there is a payment of a less sum than that claimed by the creditor, or even a less sum than, on an actual computation might be found due to the creditor. The adequacy of the payment is entirely immaterial, and will not be inquired into even by a court of equity. Of course there must be an acceptance by the creditor of the money offered in full discharge of the claim. This acceptance, however, may be implied as well as express. Thus, if the debtor tenders the amount he claims to be due, but upon the...

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5 cases
  • Lenchitsky v. H.J. Sandberg Co.
    • United States
    • Oregon Supreme Court
    • July 29, 1959
    ...and satisfaction are doubtful and permit of conflicting deductions, they are to be resolved by the trier of fact. Knight v. Wolpert, 172 Ark. 937, 290 S.W. 933, 934; Zabawa v. Osman, 202 Iowa 561, 210 N.W. 602, 603; 6 Corbin, supra, 95 § 1277; 1 Am.Jur. supra, 261 § 78. See, also, Clay v. R......
  • Odom v. Travelers Insurance Co., 679.
    • United States
    • U.S. District Court — Western District of Arkansas
    • June 16, 1959
  • Shaul v. Katzenstein
    • United States
    • Arkansas Supreme Court
    • February 14, 1927
  • Meyers Stores, Inc. v. Wurzburg Brothers
    • United States
    • Arkansas Supreme Court
    • December 2, 1929
    ... ... The case chiefly relied ... upon by appellees to sustain the action of the court in ... submitting the question to the jury is that of ... Knight v. Wolpert, 172 Ark. 937, 290 S.W ... 933. There the parties dealt with each other face-to-face, ... and, while the opinion reflects the facts ... ...
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