Stone v. Webster
| Decision Date | 27 December 1943 |
| Docket Number | 7116 |
| Citation | 65 Idaho 392,144 P.2d 466 |
| Parties | ANNA A. STONE, Co-Executrix for and on behalf of the Estate of Elizabeth Webster, deceased, Respondent, v. JOSEPH A. WEBSTER, Appellant |
| Court | Idaho Supreme Court |
1. Accord and satisfaction
Payment
"Payment" of an obligation connotes fulfillment of it according to its terms, while "accord and satisfaction" involves giving and accepting something different from, or less than that which the creditor has a right to receive.
2. Accord and satisfaction
Accord and satisfaction is an "affirmative defense" and should be specially pleaded unless failure to do so is waived.
3. Accord and satisfaction
The burden of proof is on one relying on an accord and satisfaction.
4. Pleading
All matters in confession and avoidance showing that a contract sued upon was void or voidable must be affirmatively pleaded.
5. Accord and satisfaction
In action on note, evidence of an accord and satisfaction by a compromise settlement between the executrices of payee's estate and the executor of comaker's estate was inadmissible under a general denial.
6. Pleading
If matter only controverts the original cause of action tendering no new issue, it is merely a traverse and is not "new matter" and a statement thereof need not be contained in the answer, even though the traverse be expressed in affirmative words, but if such matter raises a new issue or involves introduction of a new ingredient as the basis of one, by way of confession and avoidance, it is "new matter," and must be pleaded affirmatively.
Appeal from the Third Judicial District, for Ada County. Hon. Chas F. Koelsch, Judge. Judgment granting recovery upon promissory note sued upon in first cause of action, and denying recovery upon promissory note sued upon in second cause of action.
Affirmed.
Hawley & Hawley, for appellant.
The court erred in excluding the evidence of the compromise settlement and payment under the general denial. (Finlayson v. Harris, 49 Ida. 697, 291 P. 1071; Marysville Development Company v. Hargis, 41 Ida. 257, 239 P. 522; Brooks v. Beach, 50 Ida. 185, 294 P. 505; Malsbury v. Pullen, 9 N.J. Misc. 1023, 156 A. 327; Gray v. Krieger, (N.D.) 66 N.D. 115, 262 N.W. 343.).
Harry S. Kessler, for respondent.
The defense of release or discharge of a joint or partnership obligation as to one partner resulting from an accord and satisfaction with the estate of the other partner is an affirmative defense, and evidence thereof is not admissible under a general denial. (I.C.A., sec. 5-612; Lindsay v. Wyatt, 1 Ida. 738; Weaver v. Atlantian Const. Co., 84 Cal.App. 154, 258 P. 111 at 113; Atchison T. & S. F. Ry. Co. v. Weaver, (Okla.) 1935 OK 550, 173 Okla. 156, 47 P.2d 104; Gasper v. Mayer (Okla.) 1935 OK 388, 171 Okla. 457, 43 P.2d 467 at 471; 1 C.J.S. 551 Accord and Satisfaction, sec. 47 c (1).
Elizabeth Webster loaned to her son, A. T. Webster, on his promissory note $ 1500, and advanced to him upon his open account $ 136.50. On October 21, and December 19, 1933, respectively, Elizabeth Webster loaned to her son, A. T. Webster, and her grandson, appellant J. A. Webster, the sums of $ 214, due five years from date, and $ 260, due one year from date, evidenced by their promissory notes signed "A. T. Webster & Son, by J. A. Webster", who were at the time of the making and delivering of the promissory notes co-partners. Upon A. T. Webster's death, his son, appellant J. A. Webster was named executor of his estate. Elizabeth Webster filed as claims against the estate of A. T. Webster the above mentioned notes and also the advances made by her to A. T. Webster on open account. Before the A. T. Webster estate was probated, Elizabeth Webster died and her two daughters, Anna A. Stone and Susa B. Fisher, were named co-executrices of her estate.
After payment of all preferred claims against the estate of A. T. Webster, there remained as assets of said estate the sum of $ 808.64. The claims of the Elizabeth Webster estate against the A. T. Webster estate totalled $ 2111.50. The co-executrices, Anna A. Stone and Susa B. Fisher, petitioned the Probate Court for authority to compromise the claims against the A. T. Webster estate for the amount of $ 808.64. Anna A. Stone, either before or subsequent to the time the petition had been signed by Susa B. Fisher (the evidence being in conflict as to this point), wrote upon said petition as follows: "This, however is not intended as releaseng Joseph A. Webster who is liable for two of the notes." The two notes being the two heretofore referred to, signed by A. T. Webster and appellant.
Upon the petition so filed, the probate judge made and entered as of date February 23, 1940, an order setting out substantially the above facts wherein it is recited:
"WHEREFORE, it is ordered that the executrices of the Estate of Elizabeth Webster, deceased, be and are hereby authorized to accept the said sum of $ 808.64 in full settlement of the claims of the Estate of Elizabeth Webster, deceased, against the Estate of Alpheus T. Webster [A. T. Webster], deceased."
The $ 808.64 was paid to the attorney for the Elizabeth Webster estate and evidenced by the following receipt dated March 2, 1940:
There is evidence to the effect that when J. A. Webster, executor of A. T. Webster estate, gave the check for $ 808.64 to Harry Kessler the following notation was made upon the check: "Settlement in full of all claims of Elizabeth Webster against A. T. Webster Estate." The check for $ 808.64 was endorsed by Anna A. Stone and Susa B. Fisher as executrices and placed to the credit of the Elizabeth Webster estate. No portion of the $ 808.64 was credited upon the two notes executed and delivered to Elizabeth Webster by A. T. Webster heretofore referred to.
This action was brought by Anna A. Stone, co-executrix of the Elizabeth Webster estate, in the Probate Court of Ada County to recover judgment upon the said two promissory notes. Susa B. Fisher, the other co-executrix, refused to become a plaintiff in said action. Anna A. Stone, respondent, takes the position that the compromise and settlement of all claims against the A. T. Webster estate due the Elizabeth Webster estate did not release the co-maker, appellant, upon the two notes sued upon; while Susa B. Fisher understood that the compromise settlement constituted full satisfaction of said notes and released the co-maker, appellant. Appellant's contention is, in the absence of an affirmative allegation in the answer, that the compromise settlement released and discharged all obligations of the A. T. Webster estate due the Elizabeth Webster estate, and also released and discharged appellant as a co-obligor.
This action was tried in the Probate Court, respondent alleging in her amended complaint the execution and delivery of the two notes; that the same had not been paid and were long past due. To respondent's amended complaint; appellant filed an answer containing only a general denial, and as an affirmative defense to the second cause of action directed against the $ 260 note dated Dec. 19, 1933, plead the provisions of sec. 5-216, I.C.A., relative to the limitations of actions on written contracts. Upon the issues thus framed, the cause was tried by the Honorable John Jackson, probate judge of Ada County, without a jury resulting in a judgment in favor of respondent Anna A. Stone, co-executrix, for the sum of $ 214 together with interest upon her first cause of action at six per cent per annum from October 21, 1933, amounting in all to $ 325.78 together with an attorney fee of $ 35 and costs. As to the second cause of action, the court held that the same was barred by the statute of limitations. From the probate court judgment, appeal was taken to the district court where the cause was tried to the court without a jury, resulting in a judgment in favor of the estate of Elizabeth Webster and against appellant on the first cause of action for the sum of $ 214 together "with interest at six per cent per annum from October 21, 1935, totalling ninety dollars and fifty-six cents ($ 90.56), and the sum of fifty ($ 50.00) dollars attorney's fees." Upon the second cause of action, no recovery was allowed, the court holding that it was barred by the provisions of sec. 5-216, supra. There being no cross-appeal, we are not concerned with said second cause of action. Appellant made a motion for a new trial which was denied. This appeal is from the order denying said motion for new trial.
Appellant makes and relies upon the following assignments of error: First, "The court erred in denying the motion for new trial." Second. "The court erred in holding inadmissible the evidence showing the compromise settlement of the claims against the A. T. Webster Estate." Third,
We will first dispose of assignment No. 2, attacking the ruling of the court sustaining an objection to, and holding inadmissible, the evidence Showing the compromise settlement of claims against the estate of A. T. Webster, it being contended by respondent that the evidence was not admissible under the general denial in the answer, but that it should have been alleged as an affirmative defense. It might be here observed that the evidence showing the compromise settlement was admitted, but the court, having...
To continue reading
Request your trial
-
Boise City v. Better Homes
...and must be pleaded affirmatively.' Cupples v. Zupan, 35 Idaho 458, 207 P. 328, 329. Other cases holding similarly are Stone v. Webster, 65 Idaho 392, 144 P.2d 466; Munn v. Mid-Continent Motor Sec. Co., 126 Okl. 241, 259 P. 249; Schmaling v. Johnston, 54 Nev. 293, 13 P.2d 1111; Wyman v. McC......
-
Ossmen v. Commercial Credit Corp., 7785
...party asserting such claimed new adjustment to prove it. Clay v. Rossi, 62 Idaho 140 at page 149 et seq., 108 P.2d 506; Stone v. Webster, 65 Idaho 392, 144 P.2d 466; Exchange Lumber & Mfg. Co. v. Thomas, 71 Idaho 391 at page 396, 233 P.2d There is no evidence nor are there any reasonable in......
-
Mohr v. Shultz
...any showing that his failure to do so was waived by appellant. Werry v. Goodman, 78 Idaho 298, 301 P. 2d 1111 (1956); Stone v. Webster, 65 Idaho 392, 144 P.2d 466 (1943); 6 Corbin, Contracts § 1280 (1951). An affirmative defense not pleaded in the trial court cannot be raised for the first ......
-
Nordling v. Whelchel Mines Co.
...our rules such defenses are waived by failure to plead them. Werry v. Goodman, 78 Idaho 298, 301 P.2d 1111 (1956); Stone v. Webster, 65 Idaho 392, 144 P.2d 466 (1943); IRCP rules 8(c) and 12(h); 1 Am.Jur.2d, Accord and Satisfaction, § However, by IRCP rule 15(b), it is provided that 'When i......