Phillips v. St. Paul Fire & Marine Ins. Co.

• Citation: 125 So. 705,156 Miss. 41
• Decision Date: 13 January 1930
• Docket Number: 28315
• Parties: PHILLIPS v. ST. PAUL FIRE & MARINE INS. CO
• Court: United States State Supreme Court of Mississippi

125 So. 705

156 Miss. 41

PHILLIPS v. ST. PAUL FIRE & MARINE INS. CO

No. 28315

Supreme Court of Mississippi

January 13, 1930

Division A

Suggestion of Error Overruled Jan. 27, 1930.

APPEAL from chancery court of Lee county HON. CHAS. S. MITCHELL Chancellor.

Action by the St. Paul Fire & Marine Insurance Company against F. M Savery, revived in the name of his administratrix, Mrs. Hollye Savery Phillips, after his death. From the decree, defendant appeals. Reversed, and bill dismissed.

Decree reversed, and bill dismissed.

Boggan & Leake, of Tupelo, for appellant.

In accord and satisfaction the courts have held that a distinction should be made where money is paid and where a new note or additional security is given, but our court in the case of Clayton v. Clark, 74 Miss. 499, held that there should be no such distinction. This case just referred to overrules any conflicting opinion that may have been rendered in any of the following cases:

Jones v. Perkins, 29 Miss. 139; Williams v. Taylor, 50 Miss. 251; Burres v. Gordon, 57 Miss. 93.

An executed contract between debtor and creditor, by which latter agreed to take a less amount than owing on past due indebtedness, is binding, and creditor cannot sue for balance, although there was no consideration for the new contract.

Greener & Sons v. P. W. Cain & Sons, 101 So. 859, 137 Miss. 33.

Where an account was in dispute, a check with statement on its face "a/c in full to date, $ 81.84," made in connection with the dispute between debtor and creditor as to the amount justly due, meant that the payment was offered in full satisfaction of account and on that condition only.

Ex parte Southern Cotton Oil Co., 93 So. 662, 207 Ala. 704.

Paine & Paine, of Aberdeen, for appellee.

The recognized rule in this state is that the finding of a chancellor on facts is as binding on the supreme court as is the finding of facts by a jury.

An accord and satisfaction entered into and executed, through mutual mistake of facts, is not binding and may be rescinded.

Corpus Juris, page 570, sec. 105; Taylor v. Blackman, 12 So. 458.

Argued orally by J. W. P. Boggan, for appellant, and by Thos. Fite Paine, for appellee.

OPINION

Smith, C. J.

F. M. Savery was a local agent for the appellee, and this suit was filed against him by it for an accounting as to premiums collected by him, and for a decree for the amount found to be due by him to the appellee, alleged in the bill of complaint to be five hundred eight dollars and eighty-one cents with interest thereon. Savery answered denying liability and pleading a settlement with the appellee under which he paid and it accepted, the amount agreed on. F. M. Savery died while the suit was pending, and it was revived in the name of his administratrix.

The evidence discloses that Burnham, an agent of the appellee under its instruction, called on Savery for a settlement; that they were unable, from Savery's books, to ascertain the amount due. The negotiations for the settlement were conducted by Burnham with J. M. Savery, a son and employee of F. M. Savery, the appellee's agent. Burnham stated that Savery did not deny his liability to the appellee, but that "they disputed the full amount." J. M. Savery, the son, testified that all the liability was denied, but that his father accepted the amount which Burnham finally determined was due by him and paid it. In order to arrive at the amount due by F. M. Savery, Burnham telegraphed the appellee for a statement of the amounts paid by Savery during the years for which the settlement was being made. The appellee answered the telegram setting forth the amounts so paid. On the information thus disclosed by the telegram, Burnham arrived at the conclusion that there was a balance due by Savery to the appellee of sixty-one dollars and ninety cents. Savery gave Burnham a check on the Citizens' State Bank for that amount, payable to appellee's order, reciting in the face thereof that it was "for final fire and auto balance due the Company." Burnham says he explained to Savery...