Kohler v. Oliver

• Decision Date: 19 March 1917
• Court: Mississippi Supreme Court
• Parties: KOHLER v. OLIVER

74 So. 777

114 Miss. 46

KOHLER v. OLIVER

Supreme Court of Mississippi

March 19, 1917

March 1917

Division B

APPEAL from the circuit, court of Lamar county, HON. A. E WEATHERSBY, Judge.

Suit by W. F. Kohler against Jerry Oliver. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Tally & Mayson, for appellant.

OPINION

ETHRIDGE, J.

Kohler sued Oliver in the circuit court of Lamar county in an action of account stated of six hundred and six dollars and two cents, and on open account for forty dollars and thirty cents, it being alleged that the account stated was made on the 1st of May, 1914, and the open account was made on or before the 18th day of August, 1914, itemized account as to the open account, verified as required by statute, being filed as an exhibit to the declaration. The defendant pleaded the general issue and gave notice under the general issue that he would offer in evidence an agreement between the plaintiff and defendant entered into on the 28th day of August, 1914, in which the parties had compromised and settled all matters outstanding between them on that date, the agreement being made an exhibit to this notice under the general issue. In said agreement it is recited as follows:

"That whereas certain controversies and misunderstandings have heretofore arisen between said parties and it appearing evident that unless speedily settled and composed, said controversy may lead to unnecessary and unfruitful litigation, and being mutually desirous of adjusting and settling all differences now existing between said parties it is hereby agreed and understood that the said W. F. Kohler, in consideration of the premises and the sum of one thousand nine hundred and twenty-five dollars to be paid by said Jerry Oliver, according to the tenor of a certain promissory note," etc. and a certain deed of trust, etc., in which deed of trust certain property is conveyed to Oliver by Kohler, then proceeds:

"It is further agreed and understood between the parties hereto that as a part of the consideration of this agreement, that all outstanding accounts or indebtedness between the parties and all moneys due or to become due on account of any lumber heretofore sold and shipped is by the terms hereof settled and discharged and such money is to be collected and become the property of the said Kohler absolutely."

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