Metropolitan Life Ins. Co. v. Perrin
| Decision Date | 13 November 1939 |
| Docket Number | 33876 |
| Citation | 192 So. 12,187 Miss. 37 |
| Court | Mississippi Supreme Court |
| Parties | METROPOLITAN LIFE INS. CO. v. PERRIN |
APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.
Action by R. O. Perrin against the Metropolitan Life Insurance Company on two disability insurance policies. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Wells Wells & Lipscomb, of Jackson, for appellant.
The first point which we have assigned as error and to which we wish to direct the attention of the court, was the action of the trial judge in overruling the defendant's demurrer to the plaintiff's replication to the defendant's plea of accord and satisfaction. On this point, we respectfully submit that the case is governed by the decision of this honorable court on the first appeal of this case.
1 Rest. Contracts, sec. 76, commant a. and Illustration 4 thereof and Vol. 2, sec. 420; 1 Williston on Contracts (Rev. Ed.), secs. 128 and 129 and Vol. 6, sec. 854; 1 Am. Jur., Accord and Satisfaction, sec. 60; 1 C. J. S., Accord and Satisfaction, secs. 32 and 33, par. B; McCall v. Nave, 52 Miss. 494; Derrill v. Dodds, 78 Miss. 912, 30 So. 4; Cooper v. Yazoo & M. V. R. Co., 82 Miss. 634, 35 So. 162; Phillips v. St. Paul Fire & Marine Insurance Co., 156 Miss. 41, 125 So. 705; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L.R.A. 771, 60 Am. St. Rep. 522; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Greener v. Cain, 137 Miss. 33, 101 So. 859; Metropolitan Life Insurance Co. v. Perrin, 183 So. 917.
It is to be noted that the court held that the very same check as the one now before the court complies with the rule that the offer of payment must be clear and unequivocal in order to bind the creditor by the acceptance thereof.
As was held by this honorable court on the first appeal of this case, it is immaterial whether or not the plaintiff intended to accept the check in full payment, and the opinion of this honorable court is certainly well supported by the authorities.
American Law Institute, Restatement of the Law of Contracts, sec. 420, pp. 791-792.
The court erred in entering judgment final for the plaintiff.
Cooper & Rock v. Y. & M. V. R. Co., 82 Miss. 634, 35 So. 162; Metropolitan Life Insurance Company v. Perrin, 183 So. 917; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638.
Graham & Graham, of Meridian, for appellees.
There was no accord and satisfaction except for the five month period particularly itemized or otherwise particularly designated in the memorandum, account, statement, invoice, or demand so pointed to or designated in the memorandum bradded to the check.
Accord and satisfaction cannot be extended by mere influence.
Wunderlich v. State Highway Commission, 183 Miss. 428; Brown v. Merchants Co., 191 So. 58; Dewees v. Bostick Lumber & Manufacturing Co., 96 Miss. 253; 1 C. J. S., page 469, page 522, par. 33, and page 525, par. 33 B; Cooper and Rock v. Y. & M. V. Railroad Co., 82 Miss. 634; Greener & Sons v. Cain & Sons, 137 Miss. 33, 101 So. 859.
Where a person accepts a tender, but not in full of all demands, this acceptance will not conclude him from claiming more. The nature of the offer or tender by the debtor is an important consideration in determining whether there has been an acceptance and satisfaction.
Cooper and Rock v. Y. & M. V. Railroad Co., 82 Miss. 634.
If there had been no details furnished with the check, then plaintiff might have been bound solely by what appeared on the check but certainly not when details and conditions were specially prepared by the defendant and sent with the check for the information of plaintiff as a basis of his action and upon which he did act.
Greener & Sons v. Cain & Sons, 137 Miss. 33, 101 So. 859.
There is absolutely no writing on the check, either front or back, which makes the check a payment in full because the "In full" on the back of the check is limited by what follows, to-wit: "As detailed on reverse side."
The contract sued on was prima facie divisible which enabled the parties to deal with a portion thereof without waiving any rights touching another divisible portion.
This is the second appearance of this case before the Court. On the former appeal, the decision whereof is reported in 183 So. 917, and not yet reported in state reports, the sole question presented was whether the circuit court had erred in sustaining a demurrer to the appellant's special plea of accord and satisfaction. The declaration filed by the appellee in the court below against the appellant insurance company on two insurance policies issued by it to him in November, 1923, whereby the company agreed to pay the appellee the sum of $ 50 per month on each of the policies in the event he should become totally disabled, and alleged that he became totally disabled on the first day of May, 1933, and that the appellant insurance company had failed and refused to pay the $ 100 a month due him for the months of May to September, 1933, and prayed for a judgment therefor. The appellant filed the special plea of accord and satisfaction which is copied in full in the former opinion, and reference to which is here made for a complete statement of the facts upon which the plea was then predicated, including a letter written by appellant, and filed as Exhibit "C" to the plea, and which is set forth in full by the reporter, immediately preceding the opinion of the Court in the case.
On the former appeal it was held, in effect, that the plea of accord and satisfaction, as accompanied by the exhibits thereto, to-wit: (a) the paid check for $ 500 attached as Exhibit "A" copied in full in the opinion, and on the back of which the appellee's signature appeared immediately following the words "Received payment in full as detailed on reverse side . . .;" (b) the telegram sent by the appellee on January 29, 1934, copied in the plea and made Exhibit "B" thereto; and (c) the letter hereinbefore mentioned as Exhibit "C" thereto, stated a good defense; and that the appellee's demurrer thereto should have been overruled. The cause was therefore reversed and remanded.
In also appears from the former opinion that the appellee contended on that appeal that there was an additional writing which accompanied the check and limited the settlement to the disability payments due him for the months of October 1933 to February 1934, inclusive, and which writing was filed with the demurrer to the plea of accord and satisfaction. The court then held, of course, that the writing attached to the demurrer could not be considered, since it was no part of the plea demurred to.
Upon remand, the appellee filed a replication to the plea in question, and he attached thereto the said additional writing in the form of a memorandum, as follows:
Policy No.
The replication admitted the receipt by the appellee of the $ 500 check on January 29, 1934, and also that it was cashed by him on February 1, 1934, the date upon which it was made payable, but it denies that the check was either tendered or received in full of all total disability benefits, except for the period from October 1, 1933, to and including February 1, 1934, as stipulated on the memorandum hereinbefore quoted. The replication then alleges that the appellee was totally disabled from and after May 1, 1933, up to February 1, 1934, and of which contention the appellant insurance company had been fully advised by the written report of a local physician at the time of the sending of the check; that, when the appellee received the said check on January 29, 1934, it was enclosed in an envelope and there was attached thereto the said memorandum, specially prepared by the insurance company, but the appellee also alleged that he did not observe the conditions of the said memorandum until after he had sent the telegram which is set forth in the appellant's special plea, and that upon an examination of the same, he found that the appellant had specially designated the months which said check was tendered in full settlement of, and that thinking and believing the said check was limited by the memorandum to the period from October 1, 1933, to February 1, 1934, inclusive, as stated thereon, he determined that he had no right to refuse the check in full settlement for the period designated; and that with said purpose, intention and understanding, and without any further information from the appellant, he cashed the check on its due date as aforesaid.
There was a demurrer to the replication, followed by a rejoinder, surrejoinder and demurrer thereto. These demurrers having been overruled, the case proceeded to final judgment upon the merits.
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