Pidcock v. Williams

• Decision Date: 04 March 1924
• Parties: F. R. PIDCOCK and R. S. RODDENBERY, Partners Doing Business as PIDCOCK & RODDENBERY, Respondents, v. DOSSA O. WILLIAMS, Doing Business as D. O. WILLIAMS & COMPANY, Appellant
• Court: Missouri Court of Appeals

259 S.W. 899

214 Mo.App. 248

F. R. PIDCOCK and R. S. RODDENBERY, Partners Doing Business as PIDCOCK & RODDENBERY, Respondents, v. DOSSA O. WILLIAMS, Doing Business as D. O. WILLIAMS & COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 4, 1924

Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Sleater & Slattery for appellant.

(1) The action of the plaintiff in endorsing and cashing check of defendant dated June 26, 1920, for $ 817.16 was an accord and satisfaction. Maack v. Schneider, 51 Mo.App. 92; Deutman v. Kilpatrick, 46 Mo.App. 624; Adams v Helms, 55 Mo. 491; Pollman v. St. Louis, 145 Mo. 651; Perkins v. Headley, 49 Mo.App. 556. (2) The fact that plaintiff endorsed defendant's check to the effect that it was accepted in part payment and that there was a balance due does not prevent the cashing of such check from being an accord and satisfaction. St. Joseph School Board v. Hull, 72 Mo.App. 403; Lightfoot v Hurd, 113 Mo.App. 612; Halloway v. Creamery Co., 286 Mo. 489; Pollman Coal Co. v. St. Louis, 145 Mo. 651. (3) When the amount of the debt is in good faith disputed the acceptance of a payment made by one party as in full of such claim is an accord and satisfaction even though he protests at the time that more was due. Halloway v. Creamery Co., 286 Mo. 489; Lightfoot v. Hurd, 113 Mo.App. 612. (4) Where a sum of money is tendered in satisfaction of the claim and the tender is accompanied with such acts and declarations as amount to a condition that the party to whom it is offered is bound to understand therefrom that if he takes it subject to such conditions an acceptance of the offer constitutes an accord and satisfaction, it is not essential that the debtor declare in terms, in making a tender, that it is in full payment of the claim. McGregor v. Ward, 188 Mo. 611; Pollman v. St. Louis, 145 Mo. 651; Bahrenberg v. Conrad Schoppe, 128 Mo.App. 526; Cornelius v. Rosen, 111 Mo.App. 619.

Felix Cornitius for respondents.

(1) To constitute a valid accord and satisfaction, it is essential that what is given or agreed to be performed shall be offered as a satisfaction and extinction of the original demand, and that such intention shall be made known to the creditor in some unmistakable manner. Vinson v. Jordan, 167 Mo.App. 201; Matheny v. Eldorado, 82 Kansas 720, 28 L. R. A. (N. S.) 980. (2) It is essential that the creditor shall have accepted the tender with the intention that it should operate as a satisfaction. Shaw v. Burton, 5 Mo. 478; Wilkerson v. Bruce, 37 Mo.App. 156; Ga. R. Co. v. Olds, 77 Ga. 673; Edwards Bottling Works v. Jarnigan, 11 Ga.App. 162; Beattie Mfg. Co. v. Heinz, 120 Mo.App. 465. (3) The mere fact that the creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted to him only to the extent of the payment made, does not necessarily establish an accord and satisfaction. Perkins v. Headley, 47 Mo.App. 556. (4) Where a sum of money is tendered in satisfaction of a claim and the tender is accompanied with such acts and declarations as to amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it subject to such conditions he accepts it in full of all claims, then an acceptance of the money offered constitutes an accord and satisfaction. McGregor v. Ward, 188 Mo. 611; Pollman v. St. Louis, 145 Mo. 651; Bahrenburg v. Conrad Schopp, 128 Mo.App. 526; Heitland v. Culver, 181 Mo.App. 697; Redman v. Atlanta, 129 Ga. 133.

BRUERE, C. Allen, P. J., and Becker and Daues, JJ., concur.

OPINION

BRUERE, C.

This action originated with a statement filed before a justice of the peace of the city of St. Louis, on the 1st day of April, 1921, which statement in part is as follows:

May 8, 1920. 648 crates "Georgia Sweets"

at $ 2.00 per crate

$ 1296.00

Car ACL 36400

By check June 26th

$ 817.16

Balance due

$ 478.84

and interest from May 12, 1920, until paid.

The cause was appealed to the circuit court of the city of St. Louis, where the cause was tried by the court, the parties having duly waived a trial by jury, and a judgment was entered for the plaintiffs, and defendant appeals.

The evidence disclosed that the plaintiffs were engaged at Moultrie, Georgia, in the business of selling sweet potatoes and that the defendant was a wholesale fruit and produce dealer in the city of St. Louis, Mo. Both parties were subscribers to the Produce Reporter, which contained a set of standard rules and regulations adopted by the Trade and the Produce Reporter. According to these standard rules and regulations, "immediate shipment" shall permit of twenty-four hours longer time than "today's shipment" and "today's shipment" means loaded and billed for loading point in time to start on schedule provided by transportation company before midnight of the day order is received.

The evidence further shows that on May 5, 1920, the defendant wired the plaintiffs as follows:

"Wire lowest car fancy yams immediate shipment."

On the same day the plaintiffs answered by wire:

"Answering two dollars very best now stock very low can also book one car next week same price."

On the same day, and at 5:15 p. m., defendant wired the plaintiffs:

"CLF stock fancy well-packed ship car immediately one next week."

This last telegram was received at Moultrie, Georgia, and was telephoned to one of the plaintiffs at his residence, after business hours, at 7:15 p. m., on May 5, 1920. On the morning of May 6, 1920, the plaintiffs gave an order to the Georgia Northern Railway Company, at its Moultrie office, to place a railroad car at plaintiff's warehouse at Boston, Georgia, for the loading of the sweet potatoes.

It further appears in evidence that the car was placed as ordered about 4 p. m., on May 6, 1920; and that, according to the schedule of the trains of said railroad, this was the earliest hour at which the railroad could have placed the car after it was ordered; that in loading a car of sweet potatoes it is necessary to grade and repack the potatoes in crates, and that this work and the loading of the potatoes in the car takes from a day to a day and a half; that the plaintiffs loaded and delivered the car to the Georgia Northern Railway Company for transportation to the defendant, at St. Louis, Mo., at 6 o'clock p. m., the 7th day of May, 1920; and that said car left Boston, Georgia, at 8:30 o'clock a. m., the 8th day of May, 1920.

On May 8, 1920, the plaintiffs wired the defendant:

"ACL three six four hundred sweets rolling. Have five cars unsold now. What time next week shall we ship and do you want more than one?"

Whereupon, on the same day, May 8, 1920, the defendant wired the plaintiffs as follows:

Confirmation just received our wire fifth we purchased elsewhere cancel second car will do best possible rolling car."

To which defendant replied on the same day, May 8th:

"Your cancellation received and accepted. No trouble sell all have and more prices asking. Your order fifth needed no confirmation as made open offer you accepted. Car rolling yours expect acceptance our draft on arrival. Stock first class and fully up to grade and pack.

After the sending of the last-mentioned telegram there followed an exchange of correspondence between the parties in which the defendant claimed that his order of May 5, 1920, should have been confirmed by the plaintiffs not later than May 6, 1920, while the plaintiffs insisted that the order required no confirmation and that the car of potatoes belonged to the defendant.

On May 15, 1920, the defendant wired the plaintiffs:

"ACL three six four hundred arrived shall we handle best advantage will try hard net you two dollars."

On the same day, May 15, 1920, plaintiffs replied by wire:

"Potatoes sold you on your order fob loading point your potatoes expect you honor draft."

No further correspondence passed between the parties until June 15, 1920, when the plaintiffs wired the defendant:

"Your draft for ACL three six four hundred car sweets twelve hundred ninety-six dollars just returned unpaid wire explanation."

On the same day, June 15, 1920, defendant replied by wire:

"Will send check direct last car sweets."

The plaintiffs returned the draft for collection, and the same was again returned unpaid on June 25, 1920.

On said last named date the plaintiffs wired the defendant:

"Bank notifies you did not honor our draft. You wired on fifteenth you would send check for last car potatoes. You have not done so and turn down our draft. Do you want us to take other action in this matter to get our money."

On June 26, 1920, defendant replied by wire:

"Check and sales last car sweets in mail."

On the same day, June 26, 1920, the defendant wrote the plaintiffs the following letter:

"Please find enclosed check, and sales of last car of sweet potatoes. Please pardon delay in getting out these sales, as the writer has been very busy, and up to the present time could not find sufficient time to check up this matter. Reviewing this transaction, on May 5 we wired you as follows: 'Wire lowest car fancy yams immediate shipment.' You replied on the same day as follows: '$ 2.00 very best now stock very low. Can also book one car for next week same price.' We replied on the same day as follows 'Wire if fancy well packed. Ship car immediate one next week.'

"After this last wire we heard nothing from you until the afternoon of May 8, giving us car No. ACL 36400, stating that you were shipping this car, and that you would ship another car the following week. We wired you as follows: 'Confirmation just received your wire 5th....