Rucker v. King Const. Co.

• Decision Date: 19 January 1931
• Docket Number: 29088
• Citation: 159 Miss. 387,131 So. 872
• Court: Mississippi Supreme Court
• Parties: RUCKER v. KING CONST. CO

131 So. 872

159 Miss. 387

RUCKER v. KING CONST. CO

No. 29088

Supreme Court of Mississippi

January 19, 1931

Division A

(Division A. Suggestion of Error Overruled Mar. 2, 1931.)

ACCORD AND SATISFACTION. Compromise and settlement. In suit for accounting of rents &ue under contract for lease of gravel machinery, evidence held to establish accord and satisfaction between parties.

Contract covered lease of certain machinery to be used for mining gravel and required lessee to pay rental at an agreed rate per ton not less than and not exceeding a stipulated amount per month. After termination of contract, dispute arose between parties in volving balance of rent due under terms of contract.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Leflore county, HON. R. E. JACKSON Chancellor.

Suit by the King Construction Company against W. H. Rucker. From the decree rendered, defendant appeals, and complainant cross-appeals. Reversed on both direct and cross-appeal, and decree rendered.

Reversed, and decree here for appellant, Rucker, on direct and cross-appeal.

J. W. Bradford, of Itta Bena, for appellant.

The receipt, retention and appropriation by appellee of the checks from time to time mailed them by appellant with positive notations thereon "payment in full for all preceding dates" constitutes an accord and satisfaction.

May Brothers v. Doggett, 124 So. 476.

Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

Where checks are sent by the debtor and accepted by the creditor which bear a notation that such checks are payment in full to a certain date, the acceptance constitutes an accord and satisfaction, irrespective of whether or not there is a dispute as to the amount due.

Clayton v. Clark, 74 Miss. 499; Greener & Sons v. Cain, 101 So. 859; Domick v. Brookhaven Box Company, 120 So. 193; Cooper v. Y. & M. V. Railroad, 35 So. 162; Enochs v. Delta Cotton Oil Co., 104 So. 92; Philips v. St. Paul Fire, 125 So. 705; May Bros. v. Doggett, 124 So. 476; 1 R. C. L. 194; Hotel Randolph v. Watson, 53 A. L. R. and note.

Where the relations are not confidential and the parties deal at arm's length, there is no duty of disclosure and silence is not fraud; and this is true whether the facts are equally within the means of knowledge of both parties, or peculiarly within the knowledge of one party and of such a nature that the other has no right to expect information.

26 C. J. 1076, par. 18; Hall v. Thompson, 1 S. & M. 443.

Appellee by its long delay in bringing this suit has ratified the contracts.

Whittington v. H. T. Cottam & Company, 130 So. 745.

Kimbrough, Tyson & Kimbrough, of Greenwood, for appellee.

Whether accord and satisfaction, was constituted in this case through the acceptance by the King Construction Company of the various checks reciting that they were payment in full of the rent up to certain dates, under the familiar general rule of law of accord and satisfaction no such accord and satisfaction is shown under the facts in this case, for the reasons that at the time of the issuance and acceptance of said checks (a) there was no dispute between the parties as to the amount due, and (b) the amounts paid were less than the amounts due.

As in the case of other contracts procured by fraud, a contract of accord and satisfaction so procured on the part of the debtor is not binding upon the creditor.

1 R. C. L. 201 (38); 1 C. J. 567 (104); St. L. & S. F. R. R. Co. v. Ault, 28 So. 102; Dana v. G. & S. I. R. R. Co., 64 So. 214.

An important exception to the rule that mere silence is not fraud exists where the circumstances impose the duty on a person to speak and he deliberately remains silent. Where the law by reason of the relation of the parties, their respective means of knowledge, or other circumstances imposes a duty upon one of them to disclose all material facts known to him and not known to the other party mere silence in the violation of this duty with intent to deceive will amount to fraud as being a deliberate suppression of the truth and equivalent to the assertion of a falsehood.

26 C. J. 1071 (14); 12 R. C. L. 306, 307, 309 (pars. 67, 68, 69); 2 Pomeroy (4 Ed.), sections 901, 902; Hoops v. Newman, 2 S. & M. 71; Simmons v. Cutrer, 12 S. & M. 584.

The rule that failure to disclose facts is not fraud does not apply where the circumstances are such as to impose a duty to disclose them and there is such a duty where the parties stand in a fiduciary relation to each other, or where one party knows that the other relies on him to tell him truly as to the facts of the case, in which case a duty arises not to conceal anything material to the bargain and this although the parties do not stand in what is generally described as a fiduciary relation.

13 C. J. 834 (283); 1 Elliott on Contracts, 208 (123); 26 C. J. 1077, note 68; 2 Pomeroy (4 Ed.), sec. 902.

A confidential relation exists when confidence is imposed by one party and a trust accepted by the other, when a confidence has been imposed and betrayed or when influence has been acquired and abused. It embraces both technical and fiduciary relations and those informal relations where one man trusts and relies on another.

Dale v. Jennings, 107 So. 175-179.

OPINION

McGowen, J.

The King Construction Company filed its bill against W. H. Rucker in the chancery court of Leflore county seeking to recover a balance of interest alleged to be due on certain machinery used for mining gravel; also it sought a reformation of the contract as to a date and accounting as to the quantity of gravel mined by Rucker with said machinery.

The applicable part of the lease contract is in these words:

"The terms of said lease shall be until April 15, 1921, and as long thereafter as the party of the second part (W. H. Rucker), his heirs or assigns, may require the same.

"Provided that the party of the second part, his heirs or assigns, may at any time after the said April 15th, 1921, upon their option, relinquish and surrender the said machinery, implements and equipments as above enumerated and terminate this agreement by giving the party of the first part thirty days' notice, after which the party of the first part agrees to remove promptly all said machinery, implements and equipments from the said lands, leaving undisturbed, however, all railway tracks, frogs and switches, subject to the terms of an agreement made between party of the first and party of the second part, and dated December 6th, 1919.

"During the time the party of the second part shall use and retain said machinery, implements and equipments, he shall pay to the party of the first part, four cents per ton for all material he shall load and ship with said machinery, implements and equipments.

"Provided, however, the said payments shall not be less than Four Hundred Dollars ($ 400) per month, nor more than One Thousand Dollars ($ 1,000) per month, beginning and dating from July 21st, 1921, settlements to be made on or before the 10th of each month for the tonnage of materials loaded and shipped the previous month."

This contract was dated the 30th day of June, 1920.

The bill further alleged that the total amount paid by Rucker to the King Construction Company from July 1, 1920, until the termination of the contract in March, 1922, was seven thousand three hundred dollars, and alleged, in substance, that, from the inception of the contract until August 1, 1921, there had been a payment by check of four hundred dollars per month on the part of Rucker, and thereafter a payment by check of three hundred dollars per month.

The bill further alleged that the proper construction of the contract was as follows: Rucker was to pay four cents per ton for all gravel mined, the rental not to be less than four hundred dollars per month nor exceeding one thousand dollars per month, and that it was the duty of Rucker to report the quantity of gravel mined each month, which he had failed to do, refusing to make any report on demand, first made after the termination of the contract.

Appellee charged, on information and belief, that Rucker had mined more than ten thousand tons per month, and that there was due from him to the appellee a considerable sum if an accounting were had.

The prayer of the bill was for a reformation of the contract, correcting and amending the date so that it should read July, 1920, instead of 1921. It prayed for a discovery and accounting of the tonnage of gravel mined by Rucker, and for a decree against him for the amount of the balance found to be due on such accounting.

Rucker answered, denying the construction of the contract claimed by the King Construction...