Miller Jewelry Co. v. Dickson

• Decision Date: 16 June 1942
• Docket Number: 16850.
• Citation: 42 N.E.2d 398,111 Ind.App. 676
• Parties: MILLER JEWELRY CO., Inc., et al. v. DICKSON.
• Court: Indiana Appellate Court

42 N.E.2d 398

111 Ind.App. 676

MILLER JEWELRY CO., Inc., et al. v. DICKSON.

No. 16850.

Appellate Court of Indiana, in Banc.

June 16, 1942

Julius V. Medias, of Indianapolis, for appellants.

John K. Rickles, of Indianapolis, for appellee.

BLESSING Judge.

On the 25th day of April, 1930, the American Investment and Realty Company executed a lease to the appellant Miller Jewelry Company of suites Nos. 21 and 23 North Meridian Street, in the city of Indianapolis, Indiana, for a term of 10 years from the 1st day of June, 1930, to and including the 31st day of May 1940. The rent stipulated by the agreement was in the sum of $6,000 per year for the first two years; $7,000 per year for the next two years; $8,000 per year for the next two years $9,000 per year for the next two years; and $10,000 per year for the last two years of said term; said rent to be payable in equal monthly installments. Contemporaneously with the execution of the said lease, appellants Morris Dee and Mary Drozdowitz executed an instrument guaranteeing that they would pay to said American Investment and Realty Company such sum as might be necessary to cause the average minimum rental for said premises to be $8,000.

On the 16th day of July, 1934, appellant George A. Kuhn, the receiver of the Continental Building Company, Monument Place Building Corporation, and the American Investment and Realty Company, assigned and transferred to the Continental Building Company the 99-year lease to the Continental Bank Building which included suites 21 and 23 North Meridian Street. The accounts and notes receivable of the American Investment and Realty Company were also assigned and transferred to the Continental Building Company. On December 30, 1935, the said Continental Building Company assigned and transferred to George Dickson, Jr., the appellee in this case, all its rights, title and interest in and to the unpaid tenant accounts.

Thereafter said George Dickson, Jr., instituted this action against the Miller Jewelry Company, Morris Dee, Mary Drozdowitz, and George A. Kuhn, as receiver, to recover the sum of $500, alleging in his complaint that the Miller Jewelry Company was indebted to said George A. Kuhn, as receiver of the American Investment and Realty Company, in the sum of $666.66 for rent for the month of December, 1934, but that said Miller Jewelry Company paid only the sum of $400, leaving a balance due and owing in the sum of $266.66. He also alleged that he was compelled to employ attorneys to enforce the payment of said sum; that a reasonable attorney fee was $150; and that he was entitled to interest at 6% per annum from December 31, 1934, until paid.

To appellee's complaint, the appellants filed five paragraphs of answer, numbered 3 to 7, inclusive. The third paragraph alleged accord and satisfaction; the fourth alleged estoppel; the fifth alleged fraud; the sixth alleged rescission and discharge, and the seventh alleged estoppel. Appellee demurred to each of said paragraphs of answer for want of facts sufficient to constitute a defense, which demurrers were sustained by the lower court. Upon refusal of the appellants to plead further, the court rendered judgment for appellee in the sum of $266.66, attorney fees in the sum of $75 and his costs. The appellants now appeal from this judgment, assigning as error the action of the court in sustaining the appellee's demurrer to each of the five paragraphs of answer.

The third paragraph of answer alleged that prior to the 28th day of December, 1934, a controversy existed between the Continental Building Company, appellee's assignor, and the Miller Jewelry Company as to the amount of rent due for the month of December, 1934; that on the 28th day of December, 1934, the Miller Jewelry Company sent its check for $400, with a notation thereon that the same was for "Rent for Dec/34", to the rental agents of said Continental Building Company, and that "the same was handed over to said agents for plaintiff's assignor in full payment and satisfaction of all of the rent then due, and that if the same was not so accepted it should have been returned to the defendant Miller Jewelry Company, Inc." It was further alleged that this check was endorsed and cashed by the lessor, and the proceeds thereof appropriated to its use and benefit.

Appellants contend that the payment and acceptance of a smaller sum in satisfaction of a larger sum alleged to be due will operate as an accord and satisfaction of the larger amount claimed to be due. They further contend that the claim for the rent was an unliquidated claim due to the controversy about the amount of rent to be paid.

However, whether the claim was liquidated or unliquidated, in order for the acceptance of the check or remittance to have operated as a full discharge, the condition that it was to be accepted in full satisfaction of the pending claim or obligation must have been expressly made or the circumstances must have been such as to indicate clearly to the creditor that it was so sent. As was said in Pottlitzer et al. v. Wesson et al., 1893, 8 Ind.App. 472, 35 N.E. 1030, 1033: "To constitute an accord and satisfaction, it is necessary that the money shall be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that, if the money is accepted, it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such condition."

Appellants allege that the check for $400 marked "Rent for Dec/34" was handed to the rental agents in full payment and satisfaction of all the rent due, but there is no language used in this paragraph of answer indicating that such intention was made known to said rental agents. The appellants simply indicate that $400 is the amount in which they consider themselves to be indebted. There is no allegation that an obligation to return the check was imposed upon the rental agents or the lessor if such check were not accepted as full payment of the rent, nor do appellants in any way indicate that their intention to impose such a condition was made known to said agents or the lessor. We are of the opinion that the allegations of appellants' third paragraph of answer are insufficient to constitute an accord and satisfaction.

The fourth and seventh paragraphs of answer attempt to plead an estoppel. The fourth paragraph alleged, "that prior to the 28th day of December, 1934, a written agreement existed between plaintiff's assignor, Continental Building Company, Inc., and said defendants whereby the terms of a lease, a copy of which is contained in plaintiff's complaint and marked Exhibit A, pursuant to which Miller Jewelry Company, Inc., occupied the premises, were rescinded and modified by reducing the monthly rental from $666.00 to $400.00 per month. * * * That prior to the 28th day of December, 1934, plaintiff's assignor agreed with defendants that if they...