Root & Fehl v. Murray Tool Co., 1175-5497.

• Decision Date: 09 April 1930
• Docket Number: No. 1175-5497.,1175-5497.
• Citation: 26 S.W.2d 189
• Parties: ROOT & FEHL v. MURRAY TOOL CO.
• Court: Texas Supreme Court

26 S.W.2d 189

ROOT & FEHL v. MURRAY TOOL CO.

No. 1175-5497.

Commission of Appeals of Texas, Section B.

April 9, 1930.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by the Murray Tool Company against Root & Fehl. Judgment for defendant was reversed, and the cause remanded by the Court of Civil Appeals [16 S.W.(2d) 316], and defendant brings error.

Judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.

Turner, Seaberry & Springer, of Eastland, for plaintiff in error.

Grisham Brothers, of Eastland, for defendant in error.

LEDDY, J.

Defendant in error filed a suit against plaintiff in error upon a verified account, and was met by a plea of accord and satisfaction.

The following special issues were submitted to, and answered by, the jury:

(1) "On October 14th, 1926, was there a controversy existing between the parties to this suit over the claim sued upon? Answer yes or no. Answer `Yes.'"

(2) "Was such controversy, if any, urged in good faith by the defendants? Answer Yes or No. Answer `Yes.'"

(3) "On October 14th, 1926, when the defendants delivered a check of $254.71, was it agreed between the parties that this would be in full satisfaction of all claims and controversies, if any, theretofore existing between the parties? Answer yes or no. Answer `No.'"

(5) (Requested by plaintiff.) "Did any one representing the plaintiff in the delivery and cashing of the check for $254.71 know that same was marked as a payment in full of said account? Answer yes or no. Answer `Yes.'"

Based upon these findings, judgment was rendered in favor of plaintiff in error. The Court of Civil Appeals in its original opinion affirmed the judgment of the trial court, but upon reconsideration of the case set aside its former judgment, and reversed and remanded the cause for another trial. In reversing the case on rehearing, the Court of Civil Appeals concluded that the answer of the jury to special issue No. 3 was just as consistent with the theory that there was no tender of the check upon condition that it be accepted in full as that there was such tender.

Considering the state of the evidence, we think the trial court correctly construed the answer of the jury to the special issues. There is no evidence in the record that there was any agreement of the parties at the time the check was tendered that it would not be accepted as full payment of the account, as was expressly recited on the face thereof. Plaintiffs in error testified directly and positively that the check was tendered and accepted by defendant in error with the distinct understanding that it was in full settlement of the disputed account. Defendant in error's representative, who accepted the check with a notation thereon that it was in full payment of the account, and that its indorsement by defendant in error would constitute a receipt for the full amount thereof, testified that at the time he accepted the check he stated to plaintiffs in error that he would not accept it as full payment, but he does not attempt to say that plaintiffs in error assented to this proposition. He testified: "When I made the statement to Mr. Fehl that he could make the same deduction again and give me a check for the difference and that he and Mr. Murray would settle that later, I don't remember just what Mr. Fehl said there." With reference to the indorsement on the check he stated: "It was not called to my attention at the time I took the check. If it had been called to my attention I would not have accepted it." The jury found he knew of this notation at the time he accepted and cashed the check. The effect, therefore, of the finding of the jury, when considered in connection with the undisputed facts, is...