May Bros. v. Doggett

• Decision Date: 18 November 1929
• Docket Number: 27949
• Court: Mississippi Supreme Court
• Parties: MAY BROS. v. DOGGETT

124 So. 476

155 Miss. 849

MAY BROS. v. DOGGETT

No. 27949

Supreme Court of Mississippi

November 18, 1929

Division A

Suggestion of Error Overruled Feb. 10, 1930.

APPEAL from chancery court of Bolivar county, Second district, HON HARVEY McGEHEE, Chancellor.

Suit by J. L. Doggett against May Bros. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Decree reversed.

Shands, Elmore & Causey, of Cleveland, for appellant.

The acceptance of a check in full settlement of an unliquidated demand for cutting and hauling timber constitutes an accord and satisfaction.

Cragin v. J. S. Eaton & Brother, 133 Miss. 151; Mackie & Company v. Dale & Company, 122 Miss. 430; Lee v. Hawks, 68 Miss. 669; Benjamin on Sales, p. 229.

Roberson & Cook, of Clarksdale, for appellees.

As is the case with other contracts an accord and satisfaction requires an agreement, an aggregatio mentium, and it must finally and definitely close the matter covered by it. Nothing of or pertaining to that matter must be left unsettled or open to further question or arrangement.

1 C. J., 527-528-529-530-554.

Where a person accepts a tender, but not in full of all demands, this acceptance will not conclude him from claiming more. This is so even though a receipt in full be given, unless there is a positive agreement to receive the amount paid in full discharge of the debt, and fortiori where such receipt is given upon the express agreement that the creditor's right to recover any balance due shall not be affected by the receipt but shall survive its delivery.

Cooper v. Railroad Company, 82 Miss. 634; 1 Cyc. of Law & Procedure, p. 305, et seq.; Collins v. Union & Farmers Bank, 110 Miss. 506.

Argued orally by A. W. Shands, for appellant, and by Sam C. Cook, for appellee.

OPINION

Cook, J.

The appellee, J. L. Doggett, filed an original bill in the chancery court of the Second judicial district of Bolivar county against May Bros., a copartnership composed of Frank May, Ralph May, and T. E. Sledge, residents of Memphis, Tennessee, seeking to recover a large sum of money on account of numerous wrongs and items of damage enumerated in the bill of complaint, and praying for the issuance of a writ of attachment, to be levied upon certain real estate in Bolivar county owned by appellants. The appellants filed an answer, denying all the allegations of the bill of complaint, and further set up, by way of defense, an alleged settlement in full between the appellants and the appellee prior to the institution of the suit, except as to an item of ninety-nine dollars and fifty-two cents, which was tendered with the answer. The chancellor found against the appellants for an item of eighty-seven dollars and fifty cents, the cost of building a bridge, and also for the sum of seven thousand nine hundred seventy-four dollars and five cents, being the difference between the total amount claimed by the appellee to be due for cutting and hauling timber and the amount paid by the appellants, but as to all other items sued for a decree in favor of the appellants was entered; and from the decree awarding recovery for the two items mentioned an appeal was prosecuted to this court.

The facts necessary for an understanding of the issues involved are substantially as follows: The appellants were the operators of an extensive sawmill located in Memphis, Tennessee, and were the owners of a large tract of timber located in Leflore and Grenada counties, near a point known as "Madden Switch." The appellee was engaged in the business of cutting and hauling timber, and some time in the summer of 1924 he entered into a contract with the appellants to cut and haul the timber from their said lands at and for the price of five dollars per one thousand feet. The appellee began operations under the contract, and continued until some time in November, 1925, when he learned that the appellants proposed to take over, for skidder operations, a strip of timber six hundred fifty feet wide on each side of their logging railroad, and about three and one-half miles long. The appellee testified that on or about November 28, 1925, the appellants advised him that they were about to contract this skidder haul away from him; that, when he learned that fact, he made complaint to appellants' logging superintendent, and informed him that he would refuse to continue to operate under the contract between them, unless they raised the price from five dollars to six dollars and fifty cents per one thousand feet on all timber remaining to be cut and hauled, being several million feet; that the skidder strip, being six hundred fifty feet wide on each side of the logging railroad constructed over, across, and through said timber lands, was, on account of its proximity to the railroad, less expensive to haul, and for this reason he was unwilling to relinquish his right to haul this timber, unless his compensation for cutting and hauling the remainder of the timber was increased to six dollars and fifty cents per one thousand feet; that appellants' logging superintendent agreed to this increase in price, provided he secured the approval of Mr. Frank May; that he at once called Mr. May over long-distance telephone, and he agreed to the increase in price for cutting and hauling the balance of the timber not included in the skidder strip; that he then continued to cut and haul the timber, and received pay therefor at the price of six dollars and fifty cents per one thousand feet until June, 1926; that when the scale for June, 1926, was sent in, his compensation was cut back to five dollars in accordance with the terms of the original contract; that, when this was done, he made protest to the logging superintendent and demanded that he be paid six dollars and fifty cents per one thousand feet; that he went to Memphis to see Frank May, and that May assured him that he would have his logging superintendent pay him everything that was coming to him.

He further testified that appellants' logging superintendent contended that the increased price was promised for the winter months only, and informed him that the said increase was no longer in effect; that, when he received a statement and settlement for the next month's haul, he discovered that appellants were still paying him only five dollars per one thousand feet; that he then consulted an attorney, who advised him to complete the contract and say nothing more to the appellants about the price until he had done so; that he continued to receive monthly statements and settlements at the price of five dollars per one thousand feet for a number of months, but he made no further complaint, protest, or demand for the increased compensation; and that when the price was increased during the following winter and spring to six dollars, and then to six dollars and fifty cents, per one thousand feet, he assumed that the appellants made the increase in compliance with their agreement of November, 1925.

Frank May, one of the appellants, testified that in November, 1925 on account of excessive...