Nixon v. Kiddy
| Decision Date | 01 December 1909 |
| Citation | 66 S.E. 500,66 W.Va. 355 |
| Parties | NIXON v. KIDDY. |
| Court | West Virginia Supreme Court |
Submitted January 20, 1909.
Syllabus by the Court.
Payment by a debtor and receipt by the creditor of a less sum than is due upon an undisputed liquidated demand is not satisfaction of the debt, although the creditor agrees to accept it as such, if there be no release under seal or no new consideration given as to the part left unpaid.
If a debtor gives to his creditor a check for part of an undisputed liquidated sum due, reciting in the check that it is in full of the debt, the acceptance and use of the check by the creditor does not discharge the entire debt in the absence of a consideration for the release of the unpaid part.
Error from Circuit Court, Randolph County.
Action by Frank Nixon against Roy Kiddy. Judgment for plaintiff. Defendant brings error. Affirmed.
W. B Maxwell, C. W. Maxwell, and Roy See, for plaintiff in error.
James A. Bent, for defendant in error.
The plaintiff contends that the defendant contracted to sell him a grocery store for the sum of $1,100; that he paid defendant $600 in cash and was to pay the balance as he made it; that the defendant retained the key, and plaintiff never obtained complete possession of the store pursuant to his contract of purchase; that, upon a disagreement as to what the terms of the deal actually were, the trade within a few days was declared off; and that defendant still owes him part of the cash payment which should have been refunded. Defendant insists that he sold the store to the plaintiff for $600 cash and $500 on time, that the latter sum was to be secured to him, and that because the time payment was never put into secured shape by plaintiff he repurchased the store for $350, agreeing that the obligation for the deferred $500 should be canceled, and that the plaintiff should keep $50 which he had taken from the store. There is exhibited a check by which defendant paid plaintiff the $350. It bears the memorandum: "In full of purchase for Bee Hive Grocery." Plaintiff admits that he received and cashed this check, but insists that there was no resale of the store. He says there was only a declaring off of the agreement whereby he was to become the owner of the store since they did not agree as to who was entitled to the outstanding accounts and as to the status of the deferred $500. Therefore he demands all of his $600 which he paid defendant for something he did not get. He received $50 from the store during the short time that he was about it, and the check mentioned, making $400. He sued and recovered a judgment, upon the verdict of a jury, for the additional $200. Defendant strongly insists that the jury could not find for the plaintiff in the face of the check, bearing the indorsement that it did. The court below refused to disturb the verdict. Shall we do so?
There is some evidence upon which the jury could find that the agreement of sale was never fully carried out--that plaintiff was never fully vested with title to the store. Defendant retained the key to the store. He refused to turn over the key to plaintiff as a purchaser. He was contending that security must be given for the deferred payment. Plaintiff was refusing to give it, and was demanding the right to the outstanding accounts. From these facts the jury could say that there was no completed sale of the store to plaintiff. If the purchase of the store was not fully completed, and there was only a declaring off of the deal, then what could be the consideration for the retention of the $200 by the defendant? What benefit did plaintiff obtain for the sum retained by defendant? If there was no consideration for that retention, plaintiff is entitled to recover it regardless of the indorsement upon the check upon which defendant relies. Yes; he is entitled to recover, if there be no consideration even though he agreed to accept the smaller sum in payment of the larger one. On the other hand, if plaintiff had become the owner of the store, and for a smaller sum than he paid defendant for it he resold the same to him then the case is materially different. In that event there was consideration for the $200--the original sale.
If a proposed sale was simply declared off and there was actually no resale, then defendant at once owed plaintiff the $600 he had paid.
The demand was an undisputed liquidated one, due and payable. Such liquidated demand could not be fully paid by a sum less than its actual amount without consideration for the release of the part not paid. 1 Cyc. 319. This rule of law, though freely criticised, is most generally recognized and adhered to. 1 Beach on the Modern Law of Contracts, § 158; 1 Cyc. 321; 1 Amer. & Eng. Enc. of Law, 413; 1 Page on Contracts, §§ 313, 321. In some jurisdictions, as in Virginia, the rule has been abrogated by statute. 2 Minor's Inst. (4th Ed.) 830. It is the rule of the common law. It still exists with us. It is noticed by Judge Lucas in Maslin's Ex'rs v. Hiett, 37 W.Va. 15, 16 S.E. 437. This court has no power to change the rule. The Legislature may, perhaps should, do so. We may here fittingly use the language of another court regarding this law: Meyer v. Green, 21 Ind.App. 138, 51 N.E. 942, 69 Am. St. Rep. 344. Certain it is the rule is so technically well founded that the courts steadfastly adhere to it. Beach on the Modern Law of Contracts, cited above, expresses the present understanding of it in this language: "The rule upon this subject, under the modifications of later decisions, both in England and America, seems to be that a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of...
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