Mosaic Templars of America v. Austin

• Decision Date: 18 December 1916
• Docket Number: 53
• Parties: MOSAIC TEMPLARS OF AMERICA v. AUSTIN, GUARDIAN
• Court: Arkansas Supreme Court

190 S.W. 571

126 Ark. 327

MOSAIC TEMPLARS OF AMERICA v. AUSTIN, GUARDIAN

No. 53

Supreme Court of Arkansas

December 18, 1916

Appeal from Hot Spring Chancery Court; J. P. Henderson, Chancellor affirmed.

Decree affirmed.

E. H Vance, Jr., Scipio A. Jones and Thomas J. Price, for appellant.

1. The check received was in full payment. By retaining the check stating that it was payment in full, the creditor rendered it an accord and satisfaction of the debt. 98 Ark. 271. He is now estopped. 94 Ark. 159; 1 Corp. Jur. par. 81; 100 Ark 251.

R. S Bowers, for appellee.

1. There was no accord and satisfaction. 56 Ark. 43; 100 Id. 252; 49 Mo. 556. There was no compromise 93 Ark. 353; 121 S.W. 774.

2. A minor cannot be deprived of his money through fraud. 69 Ark. 431; 76 Id. 400.

3. The findings of the Chancellor are supported by the evidence. 67 Ark. 287; 68 Id. 314.

OPINION

SMITH, J.

This suit was brought against appellant by the guardian of the beneficiary of a policy of insurance issued by the appellant company. It was alleged that the policy or certificate was issued for the sum of $ 100.00, but that only $ 50.00 had been paid thereon. A demurrer to this complaint was overruled, whereupon appellant answered and alleged that the policy showed upon its face that it had been surrendered and satisfied by the acceptance of a check for $ 50.00, and there was an allegation that the chancery court in which the suit had been brought had no jurisdiction and a prayer for the dismissal of the complaint on that account. The guardian of the beneficiary, who was the husband of the insured, testified that he endorsed a certain voucher check which contained the following recitals:

"Voucher check. Notice. If any part of this check is detached it is void and must not be paid. If any parties' names hereon are minors the bank must require guardianship papers and require the guardian to sign on behalf of the minors.

"J. E. Bush, National Grand Scribe.

"Mosaic Templars of America, August 17, '15, No. 5474.

"Upon the payee executing in ink the receipt on the back of this voucher check, on demand, pay to the order of James Austin, Guardian for Lucile Austin, Fifty Dollars, $ 50.00.

"Signed,

J. E. Bush,

"National Grand Scribe, M. T. A.

"To the England National Bank,

"Little Rock, Ark.

"If not correct return without alteration and state difference. Make all endorsements below. Received the amount stated in this voucher check in full payment of the within account.

Signed,

James Austin, Guardian,

"for Lucile Austin, Payee.

"Date 8-17-15.

Description.

Amount.

"Claim No. 926, Beneficiary of Jane Austin, deceased, check mailed to M. M. Anthony, W. S., Malvern, Arkansas.

"Endorsed: Paid Aug. 20, 1915.

"England National Bank,

"Little Rock, Arkansas."

He also testified that there was no controversy as to the amount due and that he supposed the recital in the voucher that the sum received was "in full payment of the within account" referred to the voucher itself and was a mere part payment of the amount due on the policy. That the writing signed by him did not state it was in satisfaction and payment of the policy and he did not know it was so intended. He further testified that the check was delivered to him by the secretary of the local chamber of which his wife had been a member; that it was the business of the secretary to collect the dues of the members and make remittances thereof, and when the attention of this officer was called to the amount of the check she stated that this was probably a mere mistake or was intended as a partial payment and that the balance would no doubt be paid later. The secretary testified that it was her business to deliver policies to those who became members of the chamber of which she was secretary and to collect and remit all dues to the grand lodge, and that all dues on this policy had been paid and remitted, and that no one had ever written to her as secretary that the claim would not be paid in full, and that the letter to her accompanying the check contained no intimation of the company's intention to pay only $ 50.00. She testified that she understood the check to be a mere partial payment of the policy and so advised appellee when she delivered the check. She also testified that some one had given her the policy, but appellee had not done so and that it was not in his possession at the time of the death of the insured and that her assistant sent the policy to J. E. Bush, the National Grand Scribe of the Order, at his request, and that appellee made no endorsement of any kind on the policy, nor was he asked to do so. The policy was endorsed "Paid in full for $ 50.00. Policy surrendered and cancelled this August 17, 1915," but this endorsement was...