State Highway Department v. Duckworth

• Decision Date: 01 February 1937
• Docket Number: 32555
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY DEPARTMENT v. DUCKWORTH et ux

172 So. 148

178 Miss. 35

STATE HIGHWAY DEPARTMENT v. DUCKWORTH et ux

No. 32555

Supreme Court of Mississippi

February 1, 1937

Division B

1. ACCORD AND SATISFACTION. Compromise and settlement.

Where check or warrant recites that it is given in full settlement of all demands, or accounts, it is when accepted, full settlement, although there might be in fact more due than recital in check or warrant shows.

2 EVIDENCE.

Where written contract is executed, all antecedent agreements between parties are merged into it and parol evidence of antecedent agreements is inadmissible to contradict recitals of written instrument.

3 EVIDENCE.

In action based on highway department's failure to comply with alleged agreement to construct approaches to plantation road across highway for landowners who conveyed right of way to department, parol evidence that highway department's agents agreed to construct approaches prior to execution of deed of right of way, which did not contain such agreement held inadmissible, notwithstanding deed contained words "and other valuable consideration" after reciting specific consideration.

4. HIGHWAYS.

Members of highway commission could not authorize agents to bind commission unless an order therefor was entered upon its minutes authorizing giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by highway commission.

HON. EDGAR M. LANE, Judge.

APPEAL from circuit court of Covington county HON. EDGAR M. LANE, Judge.

Suit by E. J. Duckworth and wife against the State Highway Department, which was transferred from the chancery court to the circuit court. From an adverse judgment, the defendant appeals. Reversed and dismissed.

Reversed and dismissed.

E. R. Holmes, Jr., Assistant Attorney General, for appellant.

The requisition marked "in full settlement" is an accord and satisfaction.

Blue Ribbon Creamery v. Monk, 168 Miss. 130; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4; May Bros. v. Doggett, 155 Miss. 849; Phillips v. St. Paul Ins. Co., 156 Miss. 41.

If a creditor accept from his debtor a sum of money tendered in full satisfaction of his debt, and which would not otherwise have been paid to him, there is an accord and satisfaction.

Greener & Sons v. Kane & Sons, 137 Miss. 33; Clayton v. Clark, 74 Miss. 499.

No agent can bind the Highway Commission unless express authorization or artification is shown on the minutes of the Commission.

Section 5006, par. (b), Code of 1930.

By virtue of section 4992, Code of 1930, the Legislature directed the State Highway Commission to employ a secretary and to require him to keep proper minute books and further directed that "all proceedings of the State Highway Commission shall be entered upon the minutes of said Commission in a minute book to be provided and kept for that purpose." The court has held in many cases that; such statutes are mandatory and that the minutes of the boards of supervisors and of the State Highway Commission are the sole and conclusive evidence of the acts of the boards and Commission.

Bridges & Hill v. Board of Supervisors, 58 Miss. 817; Groton, etc., Co. v. Board of Supervisors of Warren County, 80 Miss. 214, 31 So. 711; Marion County v. Foxworth, 83 Miss. 677, 36 So. 36; Smith v. Board of Supervisors, 124 Miss. 36, 86 So. 707; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103.

Testimony of plaintiffs as to market value of entire property before and after taking was inadmissible and prejudicial.

Knight v. State Highway Commission, 170 Miss. 16, 154 So. 263; Parker v. State Highway Commission, 173 Miss. 213.

McIntosh & McIntosh, of Collins, for appellees.

It is admitted that the Highway Commission cannot be bound by contract except by virtue of an order on its minutes expressly authorizing liability.

An accord and satisfaction operates to distinguish liability of a debtor only to the extent that the creditor knew that the debtor intended to be discharged.

Blue Ribbon Creamery v. Monk, 168 Miss. 130, 147 So. 329; Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.

According to the undisputed evidence in this case, the appellee did not simply make a mental reservation that he would demand additional damages from the Highway Commission. Appellee honestly believed that approaches would later be constructed and that he would not be damaged further.

As we understand the law of this state, parole evidence may always be introduced to show to what extent the parties actually intended that an accord and satisfaction should reach.

Stovall v. Lampton Co., 164 So. 39; 1 C. J. 551, sec. 71.

Accord and satisfaction is properly a question to be determined by the jury under the circumstances in each case, and the verdict in appellee's favor therefor cannot now be disturbed.

The Commission went to the extent of forwarding corrected right-of-way deed and requisition to B. Duckworth to be presented to appellee, and by its pleas in the lower court it seeks to enforce the terms and conditions of the purported accord and satisfaction. This amounted to a ratification of the entire contract.

31 Cyc. 1280.

We fully realize that it is impossible for the appellee to claim damages against the Highway Commission under contract for consideration. On the other hand, the Highway Commission is attempting to enforce an accord and satisfaction contract against appellee by claiming that the real moving consideration promised by one of their employees was unauthorized. Our contention is this: that the Commission had a right to accept the entire transaction and become liable by virtue of its contract; but since it failed to do so it must be deemed to have rejected the transaction in toto and is now liable for actual property damages sustained under the view of the Supreme Court in this state in the case of Parker v. Highway Commission, 173 Miss. 213, 162 So. 162.

Appellee respectfully urges that when the Highway Commission of this state seeks to enforce a contract of accord and satisfaction to bar an individual from claiming property damages against it, the laws of this state applicable to claims between individuals apply.

Matthews v. Delta Southern Ry., 43 So. 475; 48 Century Digest, Vendor & Purchaser, sec. 627.

Appellees respectfully urge that the Supreme Court of this state has repeatedly held that a grantor can successfully attack the stipulated consideration of a deed by parole evidence; establish and enlarge consideration when the instrument stipulates "other valuable consideration."

Haden v. Sims, 150 So. 210.

OPINION

Ethridge, P. J.

Appellees, E. J. Duckworth and his wife, filed an original bill in the chancery court of Covington county for the reformation of a deed executed by them to the State Highway Commission, or Department, conveying a right of way through certain lands owned by them between Mt. Olive and Collins, Mississippi, and also for the specific performance of an alleged agreement between them and agents of the State Highway Department for the construction of approaches on a plantation road crossing the slate highway.

The chancery court sustained a demurrer to said bill, holding that neither stated a case for reformation nor for specific performance, and that, if the appellees were entitled to relief, there was an adequate remedy at law, and they would have no occasion to invoke the aid of equity. Appellees moved the court to transfer the case to the circuit court, which the court did, and thereupon the appellees filed their declaration in the circuit court alleging that they were the owners, in fee simple, of the N.W. 1/4 of N. E. 1/4 of section 4, township 8 north, range 16 west situated in Covington county, and that in the year 1931 the State Highway Commission, through agents and employees, in the performance of their duty under chapter 122, Code of 1930 (section 4989 et seq.), determined to construct, as a part of highway No. 49, a road between Mt. Olive and Collins, and in order to do so it was necessary to procure rights of way that negotiations were had with appellees, and they were offered $ 268.25 cash for a right of way; that a deed was signed by appellees for same; and that there was a verbal agreement to construct and maintain approaches so as to enable appellees to cross from one side of their lands to the other. This deed reads as follows:

"For and in consideration of Two Hundred Sixty-eight & 25/100 ($ 268.25) dollars and other valuable consideration, the receipt of which is hereby acknowledged, we, the undersigned, hereby bargain, sell, convey and warrant unto. the State of Miss. for the use of the State Highway Department, a strip of land one Hundred feet in width extending through, over and across the following described land in said County and State. Beginning at Sta. 304120 and ending at Sta. 321 90 of the final survey for the proposed road located in and across the NW 1/4 N.E. 1/4 of Section 4, Township 8, Range 16, West, and containing 4.09 acres more or less. The consideration herein stated includes all damage to fences, property and the like, and the...