Minchen v. Vernor's Ginger Ale Co. of Houston, 11838.

• Decision Date: 18 December 1946
• Docket Number: No. 11838.,11838.
• Citation: 198 S.W.2d 613
• Parties: MINCHEN v. VERNOR'S GINGER ALE CO. OF HOUSTON, Inc.
• Court: Texas Court of Appeals

198 S.W.2d 613

MINCHEN v. VERNOR'S GINGER ALE CO. OF HOUSTON, Inc.

No. 11838.

Court of Civil Appeals of Texas. Galveston.

December 18, 1946.

Rehearing Denied January 9, 1947.

Appeal from District Court, Harris County; W. W. Moore, Judge.

Action by S. Minchen against Vernor's Ginger Ale Company of Houston, Inc., for recovery of alleged balance due plaintiff as rental for a store building in the city of Houston. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Elledge & Elledge, of Houston, for appellant.

Franklin, Kelly & Fellbaum, of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellant, S. Minchen, for recovery of the sum of $1,250, alleged to be the balance due him by appellee, Vernor's Ginger Ale Company, a corporation, as rental for a store building in the City of Houston.

Appellee answered by general denial and by special pleas that portions of appellant's cause of action were barred by limitations and that the agreement sued on had been modified by an oral agreement reducing the rental from $150 to $100 per month for the balance of the term of said lease.

A jury found, in substance, in answer to special issues submitted, that on July 13, 1940, the parties had orally agreed to amend and modify the 5-year written agreement by reducing the monthly rental of said building from $150 per month to $100 per month; that appellee did not agree to do anything of material value outside of the payment of said rentals as an inducement for the modification of said lease contract; that on July 13, 1940, and on subsequent rental paying dates extending to March 30, 1944, appellee had each month tendered to appellant the sum of $100 as payment in full of the rental due for that month and that appellant had accepted such sums as payment for such periods.

Judgment was rendered in favor of appellee in accordance with the jury's verdict.

The controlling questions presented in the appeal are (1) Whether the oral agreement to reduce said rental constituted an accord and satisfaction, and (2) whether the consideration shown by the testimony was sufficient to support accord and satisfaction, and (3) whether the trial court erred in admitting evidence of an oral agreement to vary the terms of a contract in writing which was within the statute of frauds.

The record shows that appellee entered into a written agreement with appellant for the rental of a store building in the City of Houston for a period of five years from May 1, 1939, to April 30, 1944, at a monthly rental of $150 per month. On or before July 1, 1940, this rental contract was modified by an oral agreement reducing the rental from $150 to $100 per month, and appellant accepted payments of $100 per month as rental in full payment until the termination of the lease. This suit was filed February 4, 1946. It is undisputed that during 1940 appellee was in serious financial difficulties and that shortly prior to the date said rentals were reduced the president of appellee corporation informed appellant that it would be impossible for appellee to continue in business unless it cut every possible expense and that, on that occasion, appellant had stated to him that he did not want his property to be vacant and that he would like to have appellee continue to occupy it as his tenant at the reduced rental of $100 per month. After the rental on said building was reduced the company was re-organized; new capital was obtained and used for purchasing additional equipment and appellee's plant was converted into a bottling plant.

An agreement between two parties to give and accept something of value in satisfaction of a right of action which one has against the other constitutes an accord and the execution of this agreement is a satisfaction. The term accord and satisfaction, therefore, applies to the completed transaction and constitutes a bar to any action on the original contract. Buford v. Inge Construction Co., Tex.Civ.App., 279 S.W. 513.

An accord and satisfaction is considered a substituted contract complete within itself and it therefore must be based upon a consideration the same as any other contract. Courts are not concerned with the adequacy of the consideration so long as it is paid and accepted as such, but where the full consideration is not...