Smith v. Humphreys

• Decision Date: 01 December 1924
• Docket Number: No. 15155.,15155.
• Citation: 266 S.W. 487
• Parties: SMITH v. HUMPHREYS.
• Court: Missouri Court of Appeals

266 S.W. 487

SMITH v. HUMPHREYS.

No. 15155.

Kansas City Court of Appeals, Missouri.

December 1, 1924.

Appeal from Circuit Court, Sullivan County; J. E. Montgomery, Judge.

"Not to be officially published."

Action by W. E. Smith against Verna Humphreys. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Calfee & House, of Milan, for appellant.

P. M. Marr and A. L. Burns, both of Milan, for respondent.

BLAND, J.

In the court below plaintiff recovered a verdict and judgment in the sum of $12.50; $2.50 of this was for damages done by defendant's cattle to his crop of corn, and the balance, or $10, was for a feed bill resulting from the taking up of the cattle by plaintiff.

The evidence shows that after defendant's cattle broke into plaintiff's inclosure and damaged his corn crop the parties met and settled the matter for $25, defendant giving plaintiff her check in the sum of $20, and agreed to pay a debt of $5 owing by plaintiff to one Elwood. Plaintiff presented the check for payment to the bank on which a was drawn, but the cashier told him that defendant had stopped payment upon it, and had directed the cashier to say to plaintiff that she wanted to see him. Plaintiff thereupon went to see defendant. She told him that she thought he was asking too much, and that she would give him $10 in settlement of the matter. The parties seemed to agree as to what occurred up to this point. Plaintiff testified that he left without defendant's telling him to cash the cheek; defendant testified that, after unsuccessfully attempting to get plaintiff to reduce the amount of his claim, she told him to present the check for payment, and that it would be paid. She further testified that she directed the officers of the bank to honor it. Plaintiff now has the check in his possession, and has never offered to return it to defendant. The case originated in a justice court, and when it was tried there the $5 had not been paid by defendant to Elwood. However, defendant paid this money to him a few days before the trial of the case in the circuit court.

Defendant complains that the court erred in refusing to instruct the jury to the effect that, if plaintiff retained the check, their verdict should be for defendant. We think that the defendant was entitled to this instruction under the facts. On plaintiff's motion, the trial court struck out defendant's testimony relating to her conversation with plaintiff, in which she attempted to have the amount reduced, as well as her testimony that she notified the bank to honor the check, and that she had sufficient funds in the bank with which to meet it. From this, and the refusal of defendant's instructions upon the issue as to what occurred at the time of this conversation between the parties, we conclude that the court apparently tried the case upon the theory that the stopping of payment upon the check gave plaintiff the right to rescind the compromise agreement, and whatever conversation was had between the parties thereafter was immaterial. The trial court no doubt held that a tender of the check back to defendant was not necessary on the theory now advanced by plaintiff, that "defendant stood on the settlement, and the tender to her would have been refused, and hence waived."

The general rule is that, where one party to a compromise agreement refuses to perform, the other party is entitled to rescind. 12 C. J. 354. There is no question but that plaintiff was entitled to rescind when payment was stopped on the check, but he did not do so, but voluntarily joined with defendant in discussing the matter further, and in that discussion at no time notified defendant that he desired to rescind, but left with the check in his possession, saying nothing. There is no evidence that plaintiff elected to rescind until he brought this suit. At the time of the conversation, defendant's evidence tends to show that she attempted to get a modification of the compromise agreement, but that plaintiff refused, and she tendered performance as originally agreed upon. There is no evidence that plaintiff refused to again present the check to the bank. If the jury believed these facts, plaintiff was not entitled to recover upon the original cause of action.

Of course, if the jury believed plaintiff's testimony, that defendant tried to get him to reduce his claim to $10, and that she did not tell him to again present the check for payment, then plaintiff was entitled to sue on his original cause of action. But he could not recover until he tendered the check back, for the reason that one cannot repudiate an agreement and at the same time hold onto the fruits thereof. 12 C. J. 355, 356; Girard v. St. Louis Car Wheel Co., 123 Mo. 358, 27 S. W. 648, 25 L. R. A. 514, 45 Am. St. Rep. 556; Althoff v. Transit Co., 204 Mo. 166, 102 S. W. 642; Jarrett v. Morton, 44 Mo. 275. Tender was not obviated, because defendant was standing upon the settlement and therefore probably would not have accepted...