Riley v. Kershaw

• Decision Date: 31 March 1873
• Parties: GEORGE W. RILEY AND PHOEBE A. RILEY, representatives of WM. P. STEWART, Respondent, v. ANDREW J. KERSHAW, Appellants.
• Court: Missouri Supreme Court

52 Mo. 224

GEORGE W. RILEY AND PHOEBE A. RILEY, representatives of WM. P. STEWART, Respondent,

v.ANDREW J. KERSHAW, Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Samuel N. Holliday, for Appellants.

I. A contract under seal may be waived by a parol agreement or the mode of the discharge of the obligations altered--more especially, if the parol agreement shall be executed. (Monroe vs. Perkins, 9 Pick., 298; Lattimore vs. Harsen, 14 Johns 330; Dearborn vs. Cross, 7 Cowen, 48; Richardson vs. Cooper, 25 Maine, 450.)

II. A debtor may be discharged from his debt without a technical release even on payment of a less sum than is due, by a parol agreement executed, &c. (Silvers vs. Brittin, 2 Harrison (N. J.,) 275.)

III. A party accepting a sum properly tendered does thereby compromise his future claim to a large sum, if he takes the sum, offered “as all that was due.” (Sutton vs. Hawkins, 8 Carrington & Payne, 259.)

Rankin and Hayden, for Respondent.

Payment of a smaller sum in discharge of a debt calling for a larger, is never good unless there is a new agreement with a new consideration to support it. (Harriman vs. Same, 12 Gray, 341; Hern vs. Kiehl, 38 Pa. State, 147; James vs. Bullett, 2 Littell, 51; Fenwick vs. Phillips, 3 Metc. (Ky.) 88; Hall vs. Smith, 15 Iowa, 584; 3 Parsons on Contracts 618, 686, (4th Ed.)

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted to recover certain rents and taxes alleged to be due. The answer set up, by way of confession and avoidance, a new agreement between the plaintiff and defendant, by which, in consideration of the defendants' paying the rent monthly instead of quarterly as agreed upon in the original contract, a smaller sum was stipulated to be paid, and which was actually paid in full satisfaction and discharge of all the rents and taxes. The reply denied any such new agreement, and averred that the payments which were made by the month were not made by or under any such agreement, or any agreement that relieved defendant from his obligation to pay the rent reserved in the contract.

Upon the trial the evidence was contradictory, but under instructions from the court, the jury rendered a verdict for the defendant. The case was then taken to the General Term, where the judgment at Special Term was reversed and the cause remanded.

In the progress of the cause the court at the instance of the defendant instructed the jury, that if they believed from the evidence that plaintiffs agreed to receive and did receive from the defendant a less sum than the rent mentioned in the lease, in full satisfaction of the rent mentioned, and also in full satisfaction of the taxes due under the lease, and that the sums so paid by the defendant and received by the...