Longstreth v. Halter

• Decision Date: 07 February 1916
• Docket Number: 157
• Parties: LONGSTRETH v. HALTER
• Court: Arkansas Supreme Court

183 S.W. 177

122 Ark. 212

LONGSTRETH v. HALTER

No. 157

Supreme Court of Arkansas

February 7, 1916

Appeal from Conway Chancery Court; Jordan Sellers, Chancellor reversed.

STATEMENT BY THE COURT.

This suit was instituted by the appellees against the appellants to recover judgment against appellants on a certain note executed to the appellee F. U. Halter, and to foreclose a mortgage on 163 acres of land in Conway County, executed to secure the note. The defense of appellants was payment accord and satisfaction. The facts are substantially as follows:

Appellants borrowed of the appellee F. U. Halter $ 600 on July 15, 1910 and executed their note for the same, and also a mortgage on certain land in Conway County. The undisputed evidence showed that there had been paid on this note the sum of $ 400. On May 6, 1913, O. D. Longstreth wrote a letter to Halter in which he says: "I am sending you statement as I promised." The statement enclosed was as follows:

"I must owe you:

Principal on note

$ 600.00

Interest to date

79.00

Office rent, west of depot

9.00

Cow pasture

12.00

$ 700.00

Credit paid by checks

350.00

$ 350.00

You owe me:

Halter v. Kinchloe et al.; Kinchloe v. Dunaway . . $ 500.00

The letter continues as follows: "Since this was a big case and we did not have time to try it and because of the favors you have shown me heretofore I am willing to cut the amount to $ 300, if that will be satisfactory to you. $ 300 is 10 per cent on $ 3,000, the least amount you would have been entitled to had you preferred damages to getting the property. Since you got the property which you wanted rather than the damages I hope you will not regard the fee of 10 per cent as anything but reasonable. You were to pay $ 4,500.00 for one-half lot, Frauthenthal paid $ 1,666 2-3 for one-ninth lot value of lot $ 15,000.00. Your half was worth then $ 7,500.00. Your loss would then be $ 4,500.00 from $ 7,500.00 or $ 3,000.00 for which the judge would have instructed the jury as a minimum. Trusting that this will settle all amounts between F. U. Halter and O. D. Longstreth and Mayme Longstreth. I am enclosing herewith my check for $ 50.00 which balances the above account.

Very truly yours,

O. D. Longstreth."

F. U. Halter testified concerning this statement that he received it on the 6th of May; that he did not accept that statement as a final settlement. He was asked this question: "Why, if you did not consider Longstreth's indebtedness to you as paid in full, when you received the last payment made to you of $ 50.00 you didn't return the check to Longstreth?" and answered, "I held the check several weeks before cashing the same and only cashed the same after I was instructed to do so and was told that it would not have any effect on the case."

It was the contention of the appellants that F. U. Halter had employed O. D. Longstreth as an attorney to represent him in bringing about the consummation of the purchase of certain real estate from the Kinchloe heirs, which he had made from one J. D. Dunaway, acting as the agent of such heirs, the real estate involved in the transaction being certain lots in the town of Conway. The testimony of the appellants concerning this tended to show that Halter had purchased these lots from one Dunaway, agent of the Kinchloe heirs for the sale of the property, the consideration for the purchase being the sum of $ 4,500.00; that after the contract for the purchase was made and the sum of $ 50 had been paid as earnest money to close the deal, the heirs had repudiated the transaction and had sold the property to Joe Frauenthal; that Halter employed attorney O. D. Longstreth as an attorney, to enforce the contract for the purchase, or to sue for damages for failure to carry out their contract; that he rendered services in this connection which were reasonably worth the sum of $ 500, for which the charge was made in the statement rendered appellee F. U. Halter. The testimony in regard to this transaction is somewhat voluminous and it is unnecessary, in the view we take of the case, to set out and discuss the same in detail.

The testimony on behalf of the appellees in this connection was to the effect that F. U. Halter did not employ Longstreth to represent him in the capacity claimed. The testimony of Halter however shows that he did consult with Longstreth as to the purchase of the real estate, but denies that he ever authorized him to bring suit. He stated that he discussed the matter, sometimes two or three times a day from about the middle of July until the middle of August, with Longstreth. He did not know whether Longstreth prepared a complaint to file against the Kinchloe heirs or not. Among other things he stated as follows: "About the last of May or first of June, 1913, I told Longstreth I wanted my money. He said he had an account against me; that he would look it up. Before receiving the statement I had no knowledge that he contemplated charging me anything for what he claims to have done. Longstreth said there would be no charge unless I instructed him to bring suit, which I never did." He denied specifically the testimony of Longstreth in regard to his employment, but did not deny that Longstreth did the work which Longstreth testified that he did do concerning the real estate transaction. Appellee testified that there was a balance due on the note in the sum of $ 200.

The court found generally "the issue of law and fact for the plaintiff upon his complaint, and against the defendants upon their answer setting up a plea of payment and accord and satisfaction," and that there was due and unpaid upon the note sued on the sum of $ 297.40, including principal and interest, and rendered a decree in favor of the appellees against the appellants for that sum, and foreclosing the mortgage on the lands therein described. The appellants have duly prosecuted this appeal.

Decree reversed and cause remanded.

John Clerget, O. D. Longstreth, A. C. Martin and Geo. A. Longstreth, for appellants.

1. The acceptance and collection of the check without remonstrance or explanation was an accord and satisfaction. 94 Ark. 162; 148 N.Y. 326; 161 Ill. 339; 188 Mo. 623; 1 Corpus Juris. 554; Ib. 556, par. 76; Branson Inst. to Juries, § 111, p. 112; 98 Ark. 269; 100 Ark. 251; 112 Id. 503; 1 Corp. Juris., § 12, p. 270, 528, § 14, 529, § 16.

2. Where an agreement is fully executed to discharge a debt by payment of a smaller sum and such discharge is evidenced by a written receipt in full satisfaction of the greater, there is a valid discharge of the whole debt. Ib. citing 75 Ark. 354; 69 L. R. A. 823; 44 Ark. 349. See also, 1 Corp. Jur., pp. 557-8, 562-5, 570, par. 95-105, etc.

3. Implied contract. Where a party avails himself of the benefit of the services of another, though without express authority or request, the law implies a promise to pay. 26 Ark. 360; 56 Id. 382; 75 Id. 192. As to the relation of attorney and client, see 4 Cyc. 897; 2 Rul. Case Law, par. 26, p. 995; 18 S.W. 907, a ruling case; 4 Cyc. 927; 38 Ark. 149.

4. There was an account stated. 32 Ark. 470; 41 Id. 502; 55 Id. 376; 19 Id. 686; 80 Id. 439; 64 Id. 39; 1 Cyc. 370-1, 74-5; 53 Ark. 155.

5. Undisputed evidence can not be disregarded. 96 Ark. 500; 113 Id. 190.

E. M. Merriman, for appellee.

The plea of accord and satisfaction is not well founded. There was no dispute or controversy to settle, and appellee had a right to accept the check as a partial payment and not as a final settlement. The fee is exorbitant for services never rendered; never taken advantage of; nor of any benefit. The decree is right and Should be affirmed.

OPINION

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

The issue as to whether or not a...