Myers v. Green

• Citation: 21 Ind.App. 138,51 N.E. 942
• Parties: MYERS et al. v. GREEN.
• Decision Date: 15 November 1898
• Court: Court of Appeals of Indiana

21 Ind.App. 138

51 N.E. 942

MYERS et al.

v.GREEN.

Appellate Court of Indiana.

Nov. 15, 1898.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Robert S. Green, as receiver of the Gove & Hooper Company, against William Myers, Jr., and another. From a judgment for plaintiff entered on a special verdict, defendants appeal. Affirmed.

Randall & Doughman, for appellants. Breen & Morris, for appellee.

HENLEY, C. J.

This action was upon an account for goods sold by appellee to appellants. The goods so sold consisted of a certain number of hats. Appellants answered in five paragraphs, and also filed a cross complaint of one paragraph. The first paragraph of answer was a general denial; the second, a plea in payment; the third, accord and satisfaction; the fourth and fifth, failure of consideration. The cross complaint is founded upon an alleged breach of warranty. The lower court sustained a demurrer to the third and fourth paragraphs of answer, and overruled a demurrer to the fifth paragraph of answer and to the cross complaint. The cause was tried by a jury. At the request of appellee, the court ordered the jury to return a special verdict. The special verdict is in the form required by the act of 1895. Both parties to the action moved for judgment upon the special verdict. Appellee's motion was sustained; that of appellants overruled. The action of the lower court in sustaining appellee's demurrer to the third paragraph of answer, and in overruling appellants' motion for judgment upon the special verdict, are the question discussed by appellants' counsel. The third paragraph of answer, to which the lower court sustained a demurrer, was, omitting the formal parts, as follows: “Come now the defendants, and for their amended third paragraph of answer allege and say that on the 4th day of April, 1896, the defendants delivered to plaintiffs, and plaintiffs received in full satisfaction and discharge of their cause of action in their complaint alleged, the following check, which is in words and figures as follows: ‘Ft. Wayne, Ind., April 4, 1896. First National Bank of Fort Wayne: Pay to Robert S. Green, receiver Gove & Hooper Co., or order, eighty-four 60/100 dollars, in full for invoice Jany. 22, '96. Wm. Myers & Bro.’ Wherefore the defendants demand judgment.” The question arising upon this paragraph of answer is, did the delivery to, and the acceptance by, appellee of this check, as set out in the answer, satisfy appellants' claim? In other words, does it amount to an accord and satisfaction? The amount due from appellants was an ascertained sum,-a liquidated amount,-and it was held, in a recent case decided by this court, that where a debtor sent to his creditor a check for a part of a liquidated sum due the creditor, reciting in the check that it was in full of all demands, the acceptance of the check by the creditor did not discharge the entire debt. Hodges v. Truax (Ind. App.) 49 N. E. 1079. The exact question is decided in the case of Curran v. Rummell, 118 Mass. 482. In that case the plaintiffs received from one Bond, acting for the defendant, the following letter: “Gentlemen: In the matter of the Rummell estate, we are getting it into such shape that we can see the end now. It will pay a dividend of 19 cents on the dollar. As I suppose you would like to close...