Lang v. Burns, 9736
| Decision Date | 21 July 1959 |
| Docket Number | No. 9736,9736 |
| Citation | 77 S.D. 626,97 N.W.2d 863 |
| Parties | Charles A. LANG, Plaintiff and Respondent, v. Richard M. BURNS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Thos. G. Wall, Sturgis, for defendant and appellant.
William F. Brady, Rapid City, for plaintiff and respondent.
In this action plaintiff Lang asked for a judgment against the defendant Burns because of a loan made by him to Burns, which he claims is unpaid. While Burns denied the complaint generally his evidence does not dispute the loan. His sole defense is that his obligation to repay the money was extinguished by an accord and satisfaction. The jury found for Lang and Burns appeals from the judgment entered. His present attorney did not appear as his counsel in the trial.
On or about April 13, 1954, Burns and a friend went to the home of Lang who was then operating a tourist court in Sturgis, South Dakota, to negotiate a loan of $500. He was successful in this effort. As evidence of the loan he gave Lang his promissory note payable in six months and left with him as security a $500 U.S. Government Series H bond. The bond was not cashable at that time but did mature in about six months. It was payable to Helen M. Burns or Louis H. Burns, apparently his mother and father. Defendant Burns had a power of attorney from his mother authorizing him to do all acts necessary to receive payment for said bond. This type of bond is nonnegotiable and to secure payment it must be endorsed and surrendered to a Federal Reserve Bank.
On or about the due date of the note Burns went to the home of Lang and explained that he was unable to pay it. He paid Lang $20 as interest and got his note back. The bond was then taken to the bank at Sturgis where Burns endorsed and delivered it to the bank along with his power of attorney. The deposit slip showing that the bond was entered for collection was to the credit of Burns.
The bond and power of attorney were sent by the bank to the Federal Reserve Bank. Before it would pay the bond Helen M. Burns had to execute a separate endorsement. A check in payment of the bond was issued payable to her and sent to the bank at Sturgis. It sent the check by mail to her at Kansas City for endorsement and return. Whether she ever received it does not appear. In any event it was not returned nor were its proceeds. Burns' version is that Lang accepted the bond in payment of the note and that he acted only as Lang's agent in surrendering it for payment. This is the theory of his defense of an accord and satisfaction.
In this state accord and satisfaction are matters of statute:
SDC 47.0233. An accord is an agreement to accept, in extinction of an obligation, something different from that to which the person agreeing to accept is entitled.
SDC 47.0234. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed.
SDC 47.0235. Acceptance by the creditor, of the consideration of an accord, extinguishes the obligation and is called satisfaction.
It is an affirmative defense and must be specifically pleaded. SDC 33.0905. The burden of proof to establish such defense is on the party who seeks to rely on it.
Our statutes make clear that it is basically a matter of contract between the parties. As is the case with contracts generally it may be either express or implied. SDC 10.0601. In the former the terms are stated in words while the latter and its terms are spelled out of the conduct of the parties. In either case a meeting of the minds of the parties is essential to an accord.
In his testimony concerning his meeting with Lang on the due date of the note Burns said: 'I told him I didn't have the cash to pay off his note and he could take the bond and cash it and I gave him a check for $20 for the interest that was due for the time the money had been out.' The unexplained return of the note could be considered as supporting this view. Apparently this is the basis for his motion for a directed verdict on the ground that he had established an accord and satisfaction by testimony that was undisputed. The denial of this motion is assigned as error.
While the quoted statement is not directly denied by Lang there are other facts and circumstances, including Burns' subsequent conduct, which tend to contradict such testimony. In this connection it must be noted that there are occasions when actions speak louder than words. Whether the statement, if uncontradicted, would make it the duty of the trial court to direct a verdict under the rule of Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 7, we need not discuss. Our review must be on all the evidence and on this record we think it clear that the trial court was not required to grant the motion.
In reviewing the refusal of a trial court to direct a verdict for a defendant this court must view the evidence in the light most favorable to the plaintiff and give him the benefit of all reasonable inferences which may be drawn therefrom. Mehlbert v. Redlin, S.D., 96 N.W.2d 399. A verdict by direction is justified only when the evidence conclusively establishes the right of the moving party. Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 4 N.W.2d 213. This occurs when the evidence is so one-sided that reasonable minds can reach no other conclusion.
While Lang's evidence is not strong it does provide a basis for inferences favorable to him. These take on added significance if the agreement is one which must be spelled out of the conduct of the parties. A review of this record reveals facts and circumstances from which it could fairly be inferred that Lang did not agree to accept the bond in extinction of the obligation owed him by Burns. We are persuaded that reasonable minds acting reasonably could conclude that the parties intended only that the debt owed Lang would be satisfied when the money received on surrender of the bond was paid to him. It follows that the court did not err in refusing to direct a verdict for Burns.
After the case was at issue but before trial Burns asked...
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